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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