Lizette Deluna v. State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00710-CR

Lizette DELUNA,
Appellant

v.

The STATE of Texas,
Appellee

From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR3555A
Honorable Steve Hilbig, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: June 15, 2016

AFFIRMED

A jury found appellant, Lizette DeLuna, guilty of trafficking of a child and compelling

prostitution of a child, and the trial court assessed punishment at concurrent sentences of fifteen

years’ confinement and a $2,000.00 fine for each conviction. On appeal, appellant challenges the

sufficiency of the evidence in support of the jury’s verdict and alleges her trial counsel was

ineffective. We affirm.
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BACKGROUND

The complainant, J.T., was seventeen years old at the time of trial. She testified she was

born and raised in New Zealand, and immigrated to the United States in 2012. In 2013, when she

was either fourteen or fifteen years old, she moved from Houston to San Antonio to live with her

mother and step-father. At this time, she met an eighteen-year-old woman by the name of Kiki.

J.T. said she never told Kiki her age. She also said she did not have a car or a job, and after three

months in the United States, her visa expired.

At some point, Kiki moved in with J.T. and her family, and they lived together for about

three months. During this time, while they were out for a walk, Kiki and J.T. stopped to speak to

a group of people, one of whom was a man known as Red Nose. Later that same day, Red Nose,

Kiki, and J.T. went to a Fiesta Inn where they stayed overnight. J.T. stated Red Nose wanted her

to post an ad on Backpage, an internet site for escorts. She said she did not place the ad because

doing so required a credit card or gift card. When asked if she knew the purpose of the ad, J.T.

responded

No. Kiki had told him about my immigration and how much it was going to be to
get my papers. And he told her that there’s easy ways to get it, and it’s fast. And
so she told me. And then we were going to the room, and I wasn’t feeling it. They
ended up having sex. We [her and Kiki] ended up going home.

J.T. testified that a few days later, Kiki introduced her to appellant. J.T. explained

. . . Kiki was talking about wanting to make some money, too, and — but she didn’t
want to do the extra stuff. She just wanted to do what Red Nose does. And I had
asked her, Who do you know that is going to do that? And she says [appellant]. So
[Kiki] introduced me to [appellant]. We had gone to [appellant’s] house, and [Kiki]
introduced me to [appellant]. We spoke to [appellant], and we had come up with a
deal that half of her money would go to Kiki, half of her money would go to Red
Nose.

On cross-examination, J.T. clarified what she meant. According to J.T., Kiki decided she

wanted to start making money and she needed to find someone “that she could put to work,” which

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is when J.T. and Kiki went to appellant’s house. J.T. said the purpose of the visit was to talk to

appellant about prostituting appellant on Backpage.

According to J.T., although Kiki was working on the details of making money with

appellant, she [J.T.] did not agree to participate. J.T. said she was sixteen years old at this time,

and had never engaged in prostitution.

A few days later, Red Nose and another woman named Stephanie drove to J.T.’s house to

pick up Kiki and J.T. J.T. said they all drove to the Fiesta Inn where J.T. thought they would go

swimming and just have fun. J.T. said she did not want to go to the Fiesta Inn, but Kiki persuaded

her to come by telling her that Red Nose would beat Kiki up. Once at the Fiesta Inn, J.T. said they

changed clothes and went swimming. J.T. said that while they were swimming,

Red Nose comes out and he tells me that there’s a client on the way. I get
out. I go up to him. He tells me that, and I tell him I’m cool. I’m all right. I go
back into the pool and [Kiki] tells me that I should go do it.
...
I had asked them to give me a time frame of when the client was going to
be there. They had said like 30 minutes. So after 30 minutes, I go into the room
and I had one of the clients knock on the door.

J.T. said she gave the client a “hand job,” and collected $120.00. Although she was

supposed to give Red Nose half of the money, he let her keep the $120.00 so that she could get a

room of her own because appellant “felt like she had paid for the room, that we shouldn’t be in

there, that we were being disrespectful.” Kiki and J.T. used the money to get their own room at

the Fiesta Inn while appellant and Red Nose shared a room. After spending one night and two

days at the Fiesta Inn, everyone moved to the Super 8 motel. J.T. said they all took a taxi from the

Fiesta Inn to the Super 8. Again, J.T. and Kiki got one room, and appellant and Red Nose got

another room. Red Nose paid for a portion of the cost of appellant’s and Kiki’s room.

While at the Super 8, J.T. had one client who was originally to meet with appellant, but

appellant had her “period” and asked J.T. to meet the client instead. J.T. explained appellant
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answered telephone calls from clients and would tell J.T. whether she had a client. When asked

who negotiated the rates the clients paid, J.T. said, “those were the rates that [appellant] and Red

Nose were doing. They didn’t want to change it, apparently.” She answered “yes” when asked if

she knew before “she even got into this that [appellant] was dealing with [Red Nose] at these

rates.” J.T. said her alias was “Megan” and she did not know if appellant used a different name.

J.T. testified that Red Nose took out an ad in Backpage and used photos of her to solicit

clients. Some of the photos of J.T. were copied from J.T.’s Facebook page, one was taken by J.T.

using Red Nose’s telephone, and another photo was taken by appellant using Red Nose’s

telephone. When J.T. had a client, Kiki would go outside with Red Nose. J.T. said she was

concerned about being in a room with a strange man, but she knew Red Nose would not allow

anything to happen to her or appellant who was also taking clients. J.T. said that in the one day

she spent at the Super 8, she had two clients. J.T. said she was paid $150.00 and $120.00, half of

which she gave to Kiki, who in turn gave the money to Red Nose. J.T. said she spent her half of

the money buying things for Kiki. J.T. stated that the next day, she, Red Nose, appellant, and Kiki

went to a Motel 6 by taxi arranged for by Red Nose. Again, Kiki and J.T. shared one room, and

appellant and Red Nose shared another room. On the second day at the Motel 6, J.T. said she had

three clients. When asked whether, during the several days she was at various motels, anyone gave

her instructions on how she should behave, J.T. responded that while at the Fiesta Inn

[Appellant] did that. She had given me an example of how to welcome a client into
the room. When they come in, you ask them to put — they either give you the
money in your hand or they’re going to put it on the dresser. And you just got to
be happy and act like you really want them there.

J.T. said the last of her three clients at the Motel 6 turned out to be an undercover police

officer. She said other police officers came into the room and asked her how old she was, and she

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responded “16 and everything changed” because they could not take her to jail. Instead, a detective

took J.T. back to her house.

J.T. testified that during the time she was away from home, her mother knew she was with

Kiki, whom she trusted. She said she did not have a telephone and Kiki would not let her use

Kiki’s phone. J.T. said that, unbeknownst to her, Kiki told her mother that J.T. was in Houston.

J.T. stated that after she returned home and later discovered she was pregnant, her mother pushed

her on her stomach and tried to throw J.T. and J.T.’s boyfriend out of the house, her step-father hit

her, and her boyfriend then beat her step-father. J.T. said her mother called the police and both

she and her boyfriend were incarcerated for two weeks. When she returned to her house, it was

empty and her clothes were in a suitcase at the side of the house. J.T. said she tried to call her

mother, but her mother had changed telephone numbers and she has not spoken to her mother

since. J.T. said she has no other family in the United States. She said she is facing criminal charges

for bodily injury and criminal mischief. J.T. stated she was represented by counsel in the criminal

proceedings against her, and she had not been offered any deal in exchange for her testimony at

appellant’s trial.

Detective George Segura, a San Antonio VICE officer, testified he was called to the Motel

6 after undercover VICE officers discovered J.T. acting as a prostitute and that she was a minor.

Detective Segura said there were two people “recovered” at the scene (J.T. and Kiki), and two

other people who were not at the scene (Red Nose and appellant) were considered suspects. After

speaking briefly with J.T. and Kiki, Detective Segura brought both girls to the home of J.T.’s

mother. Detective Segura said J.T. was sixteen years old at the time of her prostitution, and

appellant was in her twenties. Based on his investigation, Detective Segura filed three cases for

trafficking a person under the age of eighteen with the District Attorney’s Office: one against

Gerald Rathey, aka Red Nose; one against Kiki; and one against appellant. Detective Segura
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explained how one placed an ad on Backpage, and he said it was uncommon for a male to answer

the telephone number placed in the ad.

A jury found appellant guilty on one count of trafficking, not guilty on a second count of

trafficking, and guilty of compelling prostitution.

SUFFICIENCY OF THE EVIDENCE

Appellant asserts there is no evidence she “trafficked” a child or compelled prostitution of

a child. Appellant also asserts the trial court failed to properly apply the rule of parties.

A. Applicable Law and Standard of Review

A person commits the offense of trafficking a child 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 . . . (C) Section 22.011 (Sexual Assault) [or] (E) Section 43.02 (Prostitution) . . . .”

TEX. PENAL CODE ANN. § 20A.02(a)(7)(C),(E) (West Supp. 2015). A person commits the offense

of compelling prostitution if the person knowingly “causes by any means a child younger than 18

years to commit prostitution, regardless of whether the actor knows the age of the child at the time

the actor commits the offense.” Id. § 43.05(a)(2). The jury was instructed that a person is

criminally responsible as a party to an offense if the offense is committed by her own conduct, or

by the conduct of another for which she is criminally responsible, or both. Id. § 7.01(a) (West

2011). The jury was instructed that a person is criminally responsible for an offense committed

by the conduct of another if acting with intent to promote or assist the commission of the offense,

she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

Id. § 7.02(a)(2).

When reviewing the legal sufficiency of the evidence to support a criminal conviction, we

review the evidence in the light most favorable to the verdict to determine whether a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.
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Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

The jury is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); Merritt v. State,

368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Under the Jackson standard, we are required to

defer to the jury’s determination of the credibility of witnesses “and the weight to be given their

testimony.” Brooks, 323 S.W.3d at 899. Circumstantial evidence is as probative as direct

evidence, and alone, may be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). A jury is permitted to draw multiple reasonable inferences from the facts so

long as the inferences are supported by the evidence presented at trial. Merritt, 368 S.W.3d at 525.

We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt,

instead, we consider only whether the jury reached a rational decision. Brooks, 323 S.W.3d at

899.

B. Application and Analysis

On appeal, appellant asserts the evidence is insufficient to support the trafficking

conviction on three grounds. First, appellant contends the only evidence the State presented

regarding trafficking a minor was that appellant, J.T., Kiki, and Red Nose all rode in a taxi on June

10, 2014, not on June 11, 2014. Second, appellant contends J.T. never discussed her age with

appellant, nor did appellant know J.T.’s age; therefore, the State failed to produce any evidence

that “the persons actually committing [sexual] assault were more than three years older than” J.T.

Third, appellant contends the State failed to produce any evidence that appellant caused J.T. to

engage in prostitution because, based on J.T.’s own testimony, appellant was already present at

the Fiesta Inn and appellant did not know J.T. would be joining them on June 9 or 11, 2014.

As to the compelling prostitution of a child conviction, appellant asserts the evidence is

insufficient on two grounds. First, appellant contends the State failed to prove appellant caused
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J.T. to commit prostitution by the use of force, threat, or fraud because the only evidence presented

was that Kiki told J.T. that if J.T. did not come to the hotel with her then Red Nose would beat

both of them. Second, appellant contends the State failed to prove causation because there is no

evidence appellant provided J.T. with an opportunity to engage in prostitution. Appellant contends

the record establishes only that Red Nose and Kiki used threats and provided an opportunity to

engage in prostitution when Red Nose and Kiki transported J.T. to the Fiesta Inn.

Finally, appellant asserts the trial court misapplied the law of parties because the State

failed to produce sufficient evidence that appellant was criminally responsible for the conduct of

another, or that she acted with the intent to promote or assist the commission of an offense. Again,

appellant points to Red Nose and Kiki as being solely responsible for J.T.’s conduct. According

to appellant, the State could only show that appellant was forced to cooperate with Kiki and Red

Nose by reserving her own rooms, answering Red Nose’s telephone, and calling for taxi cabs.

In this case, the State had to prove appellant knowingly trafficked J.T., and by any means

caused J.T. to engage in or become a victim of sexual assault or prostitution on or about June 11,

2014. TEX. PENAL CODE § 20A.02(a)(7)(C),(E). The Penal Code’s definition of “traffic” includes

more than transporting a complainant. The Penal Code defines “traffic” as “to transport, entice,

recruit, harbor, provide, or otherwise obtain another person by any means.” Id. § 20A.01(4). The

State also had to prove appellant knowingly caused, by any means, J.T. to commit prostitution. Id.

§ 43.05(a)(2). A person commits the offenses of trafficking of a child and compelling prostitution

of a child “regardless of whether the [person] knows the age of the child at the time the [person]

commits the offense.” See id. §§ 20A.02(b)(1); 43.05(a)(2). Finally, under the law of parties, the

State had to show appellant, acting with intent to promote or assist the commission of an offense,

solicited, encouraged, directed, aided, or attempted to aid another person to commit the offense.

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Although a minor may be “trafficked” in more than one manner, on appeal, appellant

focuses her argument only on the one taxi ride, arguing they simply all rode together in one taxi.

However, records from the taxi cab company indicated that on June 9, 2014, appellant called for

the taxi. Also, the definition of “traffic” includes to entice or recruit, two words not defined in the

Penal Code and which do not possess a technical meaning; thus, they may be given their common

meanings. Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000) (“terms not

legislatively defined [and without possessing a technical meaning] are typically to be understood

as ordinary usage allows, and jurors may thus give them any meaning which is acceptable in

common parlance”); see also Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011)

(internal citation omitted) (“When analyzing the sufficiency of the evidence, undefined statutory

terms ‘are to be understood as ordinary usage allows, and jurors may thus freely read statutory

language to have any meaning which is acceptable in common parlance.’”). The common meaning

of “entice” includes to “draw on by arousing hope or desire,” “allure,” “draw into evil ways,” “lead

astray,” and “tempt.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 757 (2002). The

common meaning of “recruit” includes to “hire or otherwise obtain [a person] to perform services,”

and “secure services of [a person].” Id. at 1899.

The jury heard the following evidence regarding appellant’s conduct. The first hotel room

in which J.T. engaged in prostitution was appellant’s room. Appellant asked J.T. to take a client

at the Super 8 because appellant had her “period.” Appellant took one of the photographs of J.T.

and used it in the Backpage ad. Appellant instructed J.T. how to welcome a client into the room,

how to take the money from the client, and that she should be “happy and act like you really want

them there.” Appellant would call J.T.’s room to tell her whether J.T. had a client. Detective

Segura testified it was uncommon for a male to take calls from clients responding to Backpage

ads.
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From this evidence, the jury could have reasonably inferred that appellant “trafficked” J.T.

by enticing or recruiting J.T. into engaging in prostitution. Likewise, the jury could have

reasonably inferred appellant compelled J.T. to engage in prostitution. Contrary to appellant’s

argument, there is no requirement that force, threat, or fraud be used to commit the offense of

compelling a child to commit prostitution. See TEX. PENAL CODE § 43.05(a)(2). The State was

required only to show appellant “cause[d] by any means” a child to commit prostitution. Id. On

appeal, appellant contends the State failed to show causation under Penal Code section 6.04.

“A person is criminally responsible if the result would not have occurred but for his

conduct, operating either alone or concurrently with another cause, unless the concurrent cause

was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” TEX.

PEN. CODE § 6.04(a) (emphasis added). However, “section 6.04 ‘relating to causation . . . has

nothing to do with’ a defendant’s responsibility for the actions of another under Penal Code section

7.02.” Roberts v. State, 319 S.W.3d 37, 47 (Tex. App.—San Antonio 2010, pet. ref’d) (quoting

Phillips v. State, 770 S.W.2d 824, 826 (Tex. App.—El Paso 1988, no pet.)). “Evidence may

support a conviction either on the theory of a defendant’s guilt based on his or her own actions or

based on a defendant’s guilt because of his or her responsibility for the actions of another.” Id.

(citing to TEX. PENAL CODE § 7.01(a)). Therefore, appellant’s argument on causation is without

merit because the State could establish her guilt as a party upon proof, beyond a reasonable doubt,

that she acted “with intent to promote or assist the commission of the offense” of compelling

prostitution and she solicited, encouraged, directed, aided, or attempted to aid Red Nose to commit

the offense. Although there is no dispute in this appeal that Red Nose promoted J.T.’s prostitution,

the jury could have reasonably inferred from the evidence that appellant, acting with intent to

promote or assist the commission of the offenses of trafficking a minor and compelling

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prostitution, solicited, encouraged, directed, aided, or attempted to aid Red Nose to commit the

offenses.

We conclude a rational jury could have found the essential elements of both offenses

beyond a reasonable doubt.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant asserts her trial counsel was ineffective in three areas. First, appellant contends

counsel failed to object to extraneous actions occurring on June 8 and 10 of 2014 because the

indictment alleged wrongful conduct on only June 9 and 11 of 2014. Second, appellant asserts

counsel failed to “highlight” the ongoing sexual relationship between Kiki and Red Nose, and

instead, allowed the State to introduce evidence that appellant and Red Nose had a sexual

relationship. According to appellant, the evidence of her relationship with Red Nose strengthened

the State’s case that she was a party to the criminal acts. Third, appellant asserts counsel failed to

“highlight” J.T.’s conflict of interest based on her illegal stay in the United States and her pending

criminal charges of causing bodily injury and criminal mischief. According to appellant, counsel

should have told the jury J.T. had every reason to cooperate with the State to avoid the

consequences of her own actions.

To prevail on a claim of ineffective assistance of counsel, the defendant must show: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced her defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To show deficient performance, the

defendant must prove by a preponderance of the evidence that her attorney’s representation “fell

below the standard of professional norms.” Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim.

App. 2007). “To demonstrate prejudice, the defendant must show a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

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Id. at 348. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.

We “indulge a strong presumption that counsel’s conduct falls within the wide range of

professional assistance.” Id. at 689. “To defeat the presumption of reasonable professional

assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808,

814 (Tex. Crim. App. 1999) (internal citations omitted). In this case, appellant did not file a motion

for new trial nor was any hearing held at which a record on trial counsel’s strategy could be

developed. Therefore, we are faced with a silent record. “When the record is silent as to counsel’s

reasons for his conduct, finding counsel ineffective would call for speculation by the appellate

court, [and] [a]n appellate court will not speculate about the reasons underlying defense counsel’s

decisions.” Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

“If the record is silent as to the reasoning behind counsel’s actions, the presumption of

effectiveness is sufficient to deny relief.” Ruiz v. State, 293 S.W.3d 685, 691 (Tex. App.—San

Antonio 2009, pet. ref’d). The presumption prevails because “trial counsel should ordinarily be

afforded an opportunity to explain his actions before being denounced as ineffective.” Rylander

v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). “Absent such an opportunity, an appellate

court should not find deficient performance unless the challenged conduct was ‘so outrageous that

no competent attorney would have engaged in it.’” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

Appellant contends counsel was ineffective because he did not object to extraneous

conduct. Appellant provides no citation to the record for the complained-of conduct and the record

is silent regarding the reasons underlying counsel’s actions; therefore, appellant has not defeated

the presumption of reasonable professional assistance.
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Next, appellant contends counsel should have “highlighted” the sexual relationship

between Red Nose and Kiki. Appellant does not explain how counsel should have “highlighted”

this relationship, nor does appellant provide any citation to the record regarding the relationship

between Red Nose and Kiki. Therefore, appellant has not defeated the presumption of reasonable

professional assistance.

Finally, appellant contends counsel should have undermined J.T.’s credibility by

challenging her motive to cooperate with the State. It appears, however, that counsel’s strategy

was not to discredit the victim—J.T.—but to portray appellant as another victim of Red Nose and

Kiki’s prostitution operation. During opening arguments, defense counsel argued that Red Nose

(the pimp) and Kiki (his money collector) were the people responsible for prostituting both J.T.

and appellant. In closing arguments, defense counsel again pointed to Kiki as the person who first

got J.T. involved with Red Nose, and Kiki approached appellant about prostituting herself for Red

Nose so that Kiki could earn extra money. Counsel argued appellant was not present for much of

the conversations about Backpage and how the money would be split. Counsel pointed out to the

jury that none of the money earned by J.T. went to appellant. Counsel closed by asking the jury

not to make appellant’s situation worse because she had already been victimized by Red Nose. On

this record, we cannot say counsel’s declining to challenge J.T. was so outrageous that no

competent attorney would have done the same.

We conclude appellant has failed to prove by a preponderance of the evidence that trial

counsel’s representation fell below the standard of professional norms.

CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s judgment.

Sandee Bryan Marion, Chief Justice

Do not publish
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