Appendix — B. D. S. D. v. Texas

i

APPENDIX

TABLE OF CONTENTS

Appendix A: Texas Court of Appeals opinion

and judgment

(June 18, ZOOS)... . cc ccccnes la

Appendix B: District Court Order denying

Petitioner’s Motion for New Trial

(See: 2 Meee -¢ i+ 8a eee 2la

Appendix C: Reporter’s Record of Hearing on

Petitioner’s Motion for New Trial

(SAE. Ba, ME) wi eee eee ee 23a

Appendix D: District Court Judgment/Order

(Oct. 2, 2007) . ola

Appendix E Texas Supreme Court denial of

petition for review

(Feb. 12, 2010) ... 46a

Appendix F Texas Supreme Court denial of

motion for rehearing

(May 7, 2010) VE

Appendix G Petitioner's Amended Motion for

New Trial

(Nov. 20, 2007) . 48a

la

APPENDIX A

THE STATE OF TEXAS

COURT OF APPEALS

In The Fourteenth Court of Appeals

NO. 14-07-01079-CV

[Filed June 18, 2009]

IN THE MATTER OF B.D.S.D. )

—_

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 2007-08059

OPINION

Appellant was adjudicated as a juvenile for

engaging in delinquent conduct by committing the

offense of prostitution. In two issues, she challenges

the adjudication of the offense, arguing (1) her right to

due process was violated when the State failed to

investigate whether she was “caused by any means to

commit prostitution”; and (2) as a result of the State’s

failure to conduct such an investigation, adjudication

of the offense “offends public policy notions that child

victims of sexual exploitation must be protected.” We

affirm

2a

I. FACTUAL AND PROCEDURAL

BACKGROUND

Appellant, a sixteen-year-old girl, was alleged to

have engaged in delinquent conduct by committing the

offense of prostitution. At an adjudication hearing, the

trial court reviewed a signed stipulation of evidence, in

which appellant judicially confessed that she had

knowingly agreed to engage in sexual conduct, namely

sexual intercourse, for a fee. With an agreed

recommendation from the State, appellant asked the

trial court to accept the stipulation. The trial court

made an affirmative finding that appellant had

engaged in delinquent conduct by committing the

offense of prostitution, that she was in need of

rehabilitation, and that a disposition was required.

The State next offered, without objection, a juvenile

probation report, outlining appellant’s personal

information and delinquent conduct. The report

indicated that appellant had run away from her

mother’s home several months before the incident

resulting in the charged offense and, at the time, lived

with an adult male whose name appellant chose not to

disclose. At the adjudication hearing, appellant stated

that, after she ran away from home, she lived with two

friends, an adult male and an adult female. Appellant

stated that neither of these adults knew that she was

engaging in prostitution. Appellant claimed that she

does not take drugs but that she engages in

prostitution for the money “to buy things” that she

wants. The trial court accepted the State’s

recommendation and ordered appellant, among other

things, to complete one year of probation and fifteen

hours of community service. The trial court ordered

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that appellant be placed in the custody of the Chief

Juvenile Probation Officer.

Appellant filed a motion for new trial. In the

motion, she asserted that evidence was raised at the

adjudication hearing that would make appellant

immune from prosecution under sections 43.05 and

43.06 of the Texas Penal Code, and therefore, the trial

court’s adjudication denied her due process and led to

an absurd result. The trial court denied appellant’s

motion and granted her permission to appeal.

Ii. ISSUES AND ANALYSIS

Appellant does not dispute that she engaged in an

act that constitutes the offense of prostitution. Rather,

appellant argues that the Texas legislature’s 1973

adoption of the Penal Code, as applied to juveniles in

the Family Code,’ evinces that the legislature “could

not have intended prosecuting a child for prostitution”

' See TEX. FAM. CODE ANN. § 51.03(a)(1) (Vernon 2008) (stating

that delinquent conduct is, among other things, conduct, other

than a traffic offense, that violates a Texas penal law punishable

by imprisonment or by confinement in jail); see also Act of May 25,

1973, 63rd Leg., R.S., ch. 544, § 1, sec. 51.03(a), 1973 Tex. Gen.

Laws 1460, 1462 (amended 1987) (current version at TEX. FAM.

CODE ANN. § 51.03(a)).

* We first note that appellant’s argument is based on the false

premise that she was “prosecuted” for a crime. Appellant was not

prosecuted for committing a crime. See TEX. FAM. CODE ANN.

§ 51.13(a) (“Except as provided by Subsection (d), an order of

adjudication or disposition in a proceeding under this title is not

a conviction of a crime.”); Jn re B.W., 274 S.W.3d 179, 182 (Tex.

App.—Houston [Ist Dist.] 2008, pet filed) (involving similar

argument that a juvenile appellant was “prosecuted” for

4a

when, under section 22.021 of the Texas Penal Code, a

child cannot consent to sexual conduct with an adult

and, under sections 43.05 and 43.06 of the Texas Penal

Code, “a person under 17 caused by any means to

commit prostitution is immune from prosecution.”

Appellant presents the following two appellate issues

and asks this court to reverse and remand the case “for

disposition on an appropriate basis”:

1. Whether’ adjudication for engaging in

delinquent conduct violated appellant’s right to

due process when the State did not investigate

whether she was caused by any means to

commit prostitution.

2. Whether adjudication for engaging = in

delinquent conduct “offends public policy

notions that child victims of sexual exploitation

must be protected” when the State did not

investigate whether she was caused by any

means to commit prostitution.

We review issues of statutory construction de novo.

See Subaru of Am., Inc. v. David McDavid Nissan,

Inc., 84 S.W.3d 212, 222 (Tex. 2002); In re Smith, 260

S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.]

2008, orig. proceeding). In construing a statute, our

objective is to determine and give effect to the

legislative intent of the provision. See Natl Liab. &

Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).

If possible, we must ascertain that intent from the

language the legislature used in the statute and not

look to extraneous matters for an intent the statute

prostitution).

5a

does not state. Jd. If the meaning of the statutory

language is unambiguous, we adopt the interpretation

supported by the plain meaning of the provision’s

words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d

503, 505 (Tex. 1997); In re Smith, 260 S.W.3d at 572.

We must not engage in forced or strained construction;

instead, we must yield to the plain sense of the words

the Jegislature chose. Id.

Ill. ANALYSIS

Appellant complains that she was denied due

process of law and that notions of public policy were

offended when she was adjudicated for engaging in

delinquent conduct without a State investigation into

whether she was caused by any means to commit the

offense of prostitution. She argues that the Texas

legislature did not intend for children to be prosecuted

for prostitution and refers this court to sections 22.021,

43.05, and 43.06 of the Texas Penal Code as evidence

of the legislature’s intent.*

Adjudication ofa Juvenile who Engaged in

Delinquent Conduct by Committing the

Offense of Prostitution under Section 43.02

of the Texas Penal Code

Under the Texas Family Code, juvenile justice

courts have jurisdiction over all cases involving

delinquent conduct by a person who was a child at the

* For the purposes of our analysis, we presume, without deciding,

that appellant’s arguments are not barred by her confession in the

stipulation of evidence or by the trial court’s adjudication of

appellant based on this agreement.

6a

time the person engaged in the conduct. TEX. FAM.

CODE ANN. § 51.04(a) (Vernon 2008). A “child” is a

person who is ten years of age or older and under

seventeen years of age. Jd. § 51.02(2) (Vernon 2009).

Delinquent conduct is defined, among other things, as

“conduct, other than a traffic offense, that violates a

penal law of this state or of the United States

punishable by imprisonment or by confinement in jail.”

Id. § 51.03(a)(1) (Vernon 2008).

A child may be found to have engaged in delinquent

conduct only after an adjudication hearing. Id. § 54.03

(Vernon 2009). Upon finding that a child has engaged

in delinquent conduct, a trial court may conduct a

disposition hearing. See id. § 54.03(h). Disposition is

akin to sentencing and “is used to honor the

non-criminal character of the [juvenile] proceedings.”

In re K.T., 107S.W.3d 65, 67 (Tex. App.—San Antonio

2003, no pet.) (quoting In re C.S., 804 A.2d 307, 309

n.2 (D.C. 2002)). An order of adjudication or

disposition of a child generally does not constitute a

criminal conviction. See TEX. FAM. CODE ANN.

§ 51.13(a) (Vernon 2009).

Under section 43.02 of the Texas Penal Code,*

entitled “Prostitution,” a person commits the offense of

prostitution if that person “knowingly . . . offers to

engage, agrees to engage, or engages in sexual! conduct

for a fee.” TEX. PENAL CODE ANN. § 43.02(a)(1) (Vernon

2003). The offense of prostitution is punishable by

confinement in jail. Jd. §§ 12.22(2), 43.02(a) (Vernon

Supp. 2008). Therefore, after an adjudication hearing,

4 ,

Unless otherwise specified, hereinafter all references to a

“section” are to the Texas Penal Code.

7a

a child who has committed the offense of prostitution

may be found to have engaged in delinquent conduct,

because prostitution is conduct, other than a traffic

offense, that violates a section of the Texas Penal Code

that is punishable by confinement in jail. See TEX.

FAM. CODE ANN. §§ 51.03(a)(1), 54.03; TEX. PENAL

CODE ANN. §§ 12.22(2), 43.02(a)(1).

Under the unambiguous language of section 43.02,

a “person”? commits the offense of prostitution if that

person “knowingly . . . offers to engage, agrees to

engage, or engages in sexual conduct for a fee.” TEX.

PENAL CODE ANN. § 43.02(a); see In re B.W., 274

S.W.3d 179, 182 (Tex. App.—Houston [1st Dist.] 2008,

pet. filed) (providing that the legislature could have

drafted section 43.02 so that it did not apply to every

“person,” but the legislature chose not to do so). By its

very language, the statutory definition of “prostitution”

in section 43.02 is not limited to conduct by adults. See

TEX. PENAL CODE ANN. § 43.02(a) (providing that a

“person” commits the offense of prostitution); see also

In re B.W., 274 S.W.3d at 185 (holding that a juvenile

may be adjudicated for the engaging in delinquent

conduct by committing the offense of prostitution).

Because prostitution is punishable by confinement in

jail under the Texas Penal Code, a child who has

committed the offense of prostitution under section

43.02 of the Texas Penal Code may be found to have

engaged in delinquent conduct. See TEX. FAM. CODE

ANN. §§ 51.03(a)(1), 54.03; TEX. PENAL CODE ANN.

oA “person” is defined in the Texas Penal Code as “an individual,

corporation, or association.” TEX. PENAL CODE ANN. § 1.07(38)

(Vernon 2003).

8a

§§ 12.22(2), 43.02(a)(1); In re B.W., 274 S.W.3d at

181-82.

Under the Texas Family Code, appellant was a

“child” both when she engaged in the delinquent

conduct and at the adjudication hearing. See TEX. FAM.

CODE ANN. § 51.02(2). Under the unambiguous

language of the relevant statutes, appellant was a

child eligible to be adjudicated for engaging in

delinquent conduct by committing the offense of

prostitution. See TEX. FAM. CODE ANN. § 51.03(a)(1);

TEX. PENAL CODE ANN. § 43.02(a)(1); In re B.W., 274

S.W.3d at 185. However, we next consider appellant’s

arguments that sections 43.05 and 43.06 of the Texas

Penal Code signal a legislative intent to protect

children from prosecution for prostitution by providing

for the prosecution of the adults involved in the offense

under section 43.05 and by granting immunity from

prosecution under section 43.06.

The Offense of Compelling Prostitution

under Section 43.05 of the Texas Penal

Code

Appellant claims that the Texas legislature did not

intend to prosecute juveniles for prostitution because,

under section 43.05 of the Texas Penal Code, entitled

“Compelling Prostitution,” adult “exploiters” of

prostitution are prosecuted, and children are protected

from sexual exploitation and prosecution.

Under section 43.05, a person commits the offense

of compelling prostitution if that person “knowingly (1)

causes another by force, threat, or fraud to commit

prostitution; or (2) causes by any means a person

younger than 17 years to commit prostitution.” TEX.

Qa

PENAL CODE ANN. § 43.05(a)(2) (Vernon 2003). As used

in this statute, “prostitution” means “the offense

defined in section 43.02.” Id. § 43.01(2) (Vernon 2003).

Under the unambiguous language of section 43.05, a

person under the age of seventeen can commit the

offense of prostitution. See id., § 43.05(a)(2).

Appellant relies on Waggoner v. State and asserts

that the Austin Court of Appeals “may have already

recognized that the child cannot commit an act of

prostitution.” See 897 S.W.2d 510, 513 (Tex.

App.—Austin 1995, no pet.). The Austin Court of

Appeals in Waggoner interpreted the meaning of

“causing” a child “by any means” to commit

prostitution under subsection 43.05(a)(2). See id. at

512-13. However, the Waggoner court did not consider

the juvenile’s potential guilt when concluding evidence

was sufficient to conclude the defendant committed the

offense of compelling prostitution. See td.; see also In

re B.W., 274 S.W.3d at 183 (distinguishing Waggoner

in response to similar argument). The Waggoner court

did not address the issue of whether a child could

commit an act of prostitution or engage in delinquent

conduct by committing the offense of prostitution. See

id. at 511-13.

The purpose of subsection 43.05(a)(2) is to protect

children under the age of seventeen from being caused

to commit the offense of prostitution.® See TEX. PENAL

CODE ANN. § 43.05(a)(2); In re B.W., 274 S.W.3d at

183. Although appellant correctly notes that public

© Under section 43.05(a)(1), it is an offense to knowingly cause a

person of any age by force, threat, or fraud to commit prostitution.

See TEX. PENAL CODE ANN. § 43.05(a)(1).

10a

policy is served by protecting juveniles from being

caused by any means to commit prostitution as

contemplated by section 43.05(a)(2), it is illogical to

conclude that, because it is an offense to knowingly

cause a person younger than seventeen years to

conimit prostitution, a person younger than seventeen

years cannot commit prostitution. See In re B.W., 279

S.W.3d at 183. This argument centradicts the plain

meaning of section 43.05, and if accepted, would mean

that a juvenile could engage in conduct constituting

prostitution without fear of adjudication. See id.; P.G.

v. State, 616 S.W.2d 635, 640-41 (Tex. App.—San

Antonio 1981, writ refd n.r.e.); see also In re C.S., 591

_N.Y.S.2d 691, 693 (N.Y. Fam. Ct. 1992) (providing that

to allow juveniles to engage in delinquent conduct

without fear of adjudication would “empower|] pimps

to exploit children [by] knowing that they will not be

long removed from the streets because the [flamily

[cjourt lacks jurisdiction.”).

In this case, appellant was adjudicated as an

offender who engaged in delinquent conduct by

committing the offense of prostitution under section

43.02; she was not adjudicated as a victim of sexual

conduct. See TE*:. PENAL CODEANN. § 43.02; see also In

re B.W.,279S.W.3d at 183 (responding to an argument

that by beginning performance of the prostitution act,

as agreed, appellant is protected by law as a victim

such that her consent could not be used as a defense by

the adult who “exploited” her). Section 43.05 does not

protect a juvenile from adjudication for engaging in

delinquent conduct by committing the offense of

prostitution. See TEX. PENAL CODE ANN. § 43.05; In re

B.W., 279 S.W.3d at 183-84. Such an interpretation

would contradict the plain meaning of the relevant

statutes. See TEX. FAM. CODE ANN. § 51.03(a)(1); TEX.

lla

PENAL CODE ANN. §§ 43.02, 43.05; In re B.W., 274

S.W.3d at 185.

Juvenile’s Offer or Agreement to Engage in

Sexual Conduct

Appellant claims that under the Texas Penal Code,

children cannot legally consent to sex and therefore

the Texas legislature never intended that juveniles be

prosecuted for prostitution. Appellant refers to section

22.021, in which the legislature defines the offense of

aggravated sexual assault, and section 43.05, in which

the legislature defines the offense of compelling

prostitution, for support that a juvenile cannot consent

to sexual conduct. Appellant specifically asserts, “[i]t

does not make sense that a child’s consent to sex under

section 43.02, has legal effect, but a child’s consent to

sex under [sections] 22.021 and 43.05, has no legal

effect.”

Under section 22.021(a)(2), entitled “Aggravated

Sexual Assault,” a person commits the offense of

aggravated sexual assault if that person intentionally

or knowingly engages in one or more acts of sexual

conduct with a “child.” See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B) (Vernon 2003); In re B.W.,274S.W.3d

at 182; see also TEX. PENAL CODE ANN. §§ 22.011(a){2)

(Vernon Supp. 2008) (defining sexual assault of a

child). Under the Texas Penal Code, a “child” is

considered “a person younger than 17 years of age who

is not the spouse of the Actor.” TEX. PENAL CODE ANN.

§§ 22.011(c)(1), 22.021(b)(1) (Vernon Supp. 2008). As

discussed above, under section 43.05, the offense of

compelling prostitution prohibits a “person” from

knowingly causing by any means “a person younger

than 17 years to commit prostitution.” Jd. § 43.05.

12a

Prostitution, as discussed above regarding section

43.02, occurs when a “person” knowingly “offers to

engage, agrees to engage, or engages in sexual conduct

for a fee.” Id. § 43.02(a).

Under the unambiguous language of section 22.021

as well as section 22.011, entitled “Sexual Assault,” a

child’s lack of consent is irrelevant to the

determination of whether an accused is guilty of one of

these offenses. See id. §§ 22.021, 22.011. Even ifa child

consents or agrees to the sexual activity in fact, such

consent is not given consideration for an offense that

does not require proof that the victim did not consent.

See May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App.

1996). A child’s agreement or consent to engage in

sexual contact or conduct with an adult is irrelevant to

the adult’s commission of the serious criminal offenses

set forth in these sections of the Texas Penal Code. See

TEX. PENAL CODE ANN. §§ 21.021, 22.011; May, 919

S.W.2d at 424. However, in none of these statutes did

the Texas legislature state that a child cannot offer or

agree to engage in sexual conduct with an adult. See

id. §§ 21.021, 22.011. Under the plain meaning of the

prostitution statute, a child under the age of seventeen

can engage in the conduct described in the statute. See

id. § 43.02(a)(1); In re B.W., 274 S.W.3d at 185. We

find no merit in appellant’s argument that these

statutes cannot be harmonized to give each of them

effect.’

Although appellant refers the court to literature pertaining to

the exploitation of children, appellant has cited no legal authority

holding that a child under seventeen years of age cannot be

adjudicated for engaging in delinquent conduct by committing the

offense of prostitution.

l3a

Immunity of a Party to Prostitution under

Section 43.06 of the Texas Penal Code

Appellant argues that under sectivn 43.06(b)

children are unequivocally immune from prosecution.

Appellant has provided no case law applying this

statute; however, she asserts that the legislative

history of section 43.06 confirms the legislature’s

purported intent to protect children from sexual

exploiters and prosecution.

Section 43.06 of the Texas Penal Code, entitled

“Accomplice Witness; Testimony and Immunity,” is set

forth below:

(a) A party to an offense under this subchapter

may be required to furnish evidence or

testify about the offense.

(b) A party to an offense under this subchapter

may not be prosecuted for any offense about

which he is required to furnish evidence or

testify, and the evidence and testimony may

not be used against the party in any

adjudicatory proceeding except a prosecution

for aggravated perjury.

TEX. PENAL CODE ANN. § 43.06 (Vernon 2003). Section

43.06 applies to a “party to an offense under this

subchapter.” Jd. The subchapter, containing section

43.06, includes the following offenses: prostitution,

promotion of prostitution, aggravated promotion of

prostitution, and compelling prostitution. See id.

§§ 43.02—.05. As discussed above, a “person”—an adult

or a child—can commit the offense of prostitution. See

id. § 43.02(a); In re B.W., 274 S.W.3d at 182.

l4a

Under the unambiguous language of section 43.06,

a “party” may be granted immunity if (1) that party is

a “party to an offense,” (2) the offense is included in

the subchapter within which 43.06 is contained, and

(3) the party was required to furnish evidence or

testify about the offense. See TEX. PENAL CODE ANN.

§ 43.06(b); In re B.W., 274 S.W.3d at 184. The plain

language of section 43.06 does not provide that a child

may not be adjudicated for engaging in delinquent

conduct by committing the offense of prostitution. See

TEX. PENAL CODE ANN. § 43.06(b); Jn re B.W., 274

S.W.3d at 184. Although appellant advances argument

that the main purpose of section 43.06 is to protect

victimized children or child prostitutes, under its plain

meaning, the statute protects from prosecution parties

to prostitution, promotion of prostitution, aggravated

promotion of prostitution, or compelling prostitution

who are required to furnish evidence or testify about

the offense. TEX. PENAL CODE ANN. § 43.06(a). The

offenses about which a party may be compelled to

testify are offenses that could involve either child

prostitutes or adult prostitutes. See id. §§ 43.06

(specifying a “party to an offense under this

subchapter” receives immunity), 43.02(a)(2) (specifying

a “person” commits the offense of prostitution).

Immunity under section 43.06 is triggered only

when a party to prostitution, promotion of prostitution,

aggravated promotion of prostitution, or compelling

prostitution is “required to furnish evidence or testify

about the offense.” Jd. § 43.06(a). There is no evidence

in our record that any adult with whom appellant was

living committed an offense under section 43.05 by

knowingly causing appellant to commit prostitution.

Even if an adult with whom appellant was living had

committed such an offense, appellant would have no

ld5a

immunity under section 43.06 on those facts alone. See

In re B.W., 274 8.W.3d at 184 (providing that “section

43.06 was inapplicable because the juvenile appellant

was not ‘required to furnish evidence or testify”).

Unless appellant was required to furnish evidence or

testify about this adult’s conduct in knowingly causing

appellant to commit prostitution, appellant would have

no immunity under this statute. See TEX. PENAL CODE

ANN. § 43.06. The record does not reflect that

appellant was “required to furnish evidence or testify”

as set forth in section 43.06. See id. § 43.06(b); In re

B.W., 274S.W.3d at 184. Therefore, on the facts of this

record, appellant is not immune from adjudication

under section 43.06. See In re B.W., 274 S.W.3d at 184.

The State’s Purported Duty to Investigate

Appellant argues that the State has an obligation

to enforce section 43.05 by investigating facts.

According to appellant, the fact that she was a

run-away juvenile, who lived with an adult male

whose identity she did not want to disclose, triggered

an affirmative duty on the part of the State to

investigate whether appellant was caused by any

means to commit the offense as specified in section

43.05. The State did not conduct such an investigation.

Appellant claims that because the State did not

investigate these facts, she was denied immunity

under section 43.06, which, in turn, denied her due

process and was contrary to public policy.®

# , ;

As discussed above, we have determined that based on these

facts appellant was not immune from prosecution under section

43 06.

16a

Appellant refers this court to chapter 261 of the

Texas Family Code, entitled “Investigation of Report

of Child Abuse or Neglect,” and claims that the “law

requires reporting when any person believes that a

child is being abused, neglected or exploited.” Although

appellant cites in general chapter 261 of the Texas

Family Code for support that she claims affirmatively

requires the State to investigate compulsion of

prostitution, she does not cite any specific section

within the Family Code for this proposition.? Appellant

claims the “Legislature’s mandate in section 43.05 [of

the Texas Penal Code] is directed at the State and

adults.” For this proposition, appellant cites sections

261.001(1(E) and 261.001(1)(G) of the Family Code.

See TEX. FAM. CODE ANN. §§ 261.001(1)(E) (defining

“abuse” as sexual conduct as defined in sections 22.021

and 22.011 of the Texas Penal Code), 261.001(1)(G)

(Vernon 2008) (defining “abuse” as “compelling or

encouraging the child to engage in sexual conduct a

defined by Section 43.01” of the Texas Penal Code).

However, none of the Family Code provisions on which

appellant relies mention anything about = an

investigation by the State. On the facts asserted by

appellant, there is no indication that the undisclosed

adult male engaged in conduct specified in section

43.05 of the Texas Penal Code to warrant any

investigation—particularly in light of appellant’s

admission at the adjudication hearing, as reflected in

the record, that neither the adult male nor the adult

female with whom appellant lived knew she engaged

in prostitution.

9 See generally TEX. FAM. CODE ANN. §§ 261.001-.410 (Vernon

2009).

l7a

Likewise, appellant has_ provided no _ legal

authority” indicating that an investigation by the

State was a procedural prerequisite under the Due

Process Clause to seek adjudication against her.

Appellant relies on Jn re Gault, 387 U.S. 1, 87S. Ct.

1428, 18 L. Ed. 2d. 527 (1967), and Jn re Winship, 397

U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) for

support that she was denied due process of law by the

State’s failure to investigate. In Jn re Gault, the

United States Supreme Court held that a juvenile is

entitled to proper notice of the charges, the right to

counsel, the privilege against self-incrimination, and

the right to confrontation in a juvenile-delinquency

adjudication proceeding. See 387 U.S. at 33-34, 41,

55-56, 87 S. Ct. at 1446-47, 1451, 1458-59. In In re

Winship, the high court held that the State must prove

beyond a reasonable doubt that a juvenile committed

an offense. See 397 U.S. at 368, 90 S. Ct. at 1075.

Unlike the juveniles in Jn re Gault and In re

Winship, appellant does not allege, nor does the record

reflect, that she was denied any of the applicable

procedural safeguards that due process requires for

adjudicating a juvenile who has been accused of

engaging in delinquent conduct. See In re B.W., 274

S.W.3d at 184 (distinguishing Jn re Gault and In re

ng Appellant claims that her living arrangements involving the

undisclosed male adult are consistent with results shown in

national studies and other literature identifying people who are

in danger of being compelled to engage in prostitution and

otherwise sexually exploited. Appellant refers this court to

literature and studies that she claims recognize the “common

threads linking exploited juvenile girls” to prostitution and argues

that her circumstances raised similar red flags warranting the

State’s investigation of her as a victim.

l&a

Winship as to a similar argument with similar facts).

Appellant has provided no legal authority indicating

that the State, in seeking adjudication against her

without first conducting an investigation, violated any

substantive due process nights under the Due Process

Clause or the Due Course of Law Clause. As to

appellant’s argument that notions of fair play and

substantial justice demand that a juvenile should not

carry the stigma of being prosecuted for prostitution,

we note that the Supreme Court in Jn re Winship

required the State to follow applicable procedural

requirements in the adjudication of a juvenile’s guilt.

See id. (rejecting similar argument). The Winship court

did not hold that the State may never subject a

juvenile to the stigma of finding that a juvenile

violated a criminal law. See In re Winship, 397 U.S. at

367, 90 S. Ct. at 1074 (providing that a juvenile’s

conduct may require judicial intervention, but the

intervention cannot subject a child to the stigma of

finding a child violated a criminal law based on

insufficient proof); see also In re B.W., 274 S.W.3d at

184 (distinguishing Winship on same basis). For these

reasons, appellants arguments lack merit.

IV. CONCLUSION

Under the unambiguous language of section 43.02,

a juvenile may be adjudicated for engaging in

delinquent conduct by committing the offense of

prostitution. See TEX. FAM. CODE ANN.§ 51.03(a)(1);

TEX. PENAL CODE ANN. § 43.02(a); Jn re B.W., 274

S.W.3d at 185. The State was not obligated to

investigate whether an adult caused appellant by any

means to commit prostitution. Furthermore, because

appellant was not required to furnish evidence or

testify about the offense, appellant was not immune

19a

from prosecution. Based on the record and existing

law, adjudication of appellant for engaging in

delinquent conduct by committing the offense of

prostitution did not violate due process of law or offend

public policy. See In re B.W., 274 S.W.3d at 185.

Therefore, we overrule appellant’s first and second

ssues, and we affirm the trial court’s judgment.

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Guzman, and

Sullivan.

20a

THE STATE OF TEXAS

COURT OF APPEALS

The Fourteenth Court of Appeals

NO. 14-07-01079-CV

[Filed June 18, 2009]

IN THE MATTER OF B.D.S.D. )

)

JUDGMENT

This cause, an appeal from the trial court’s

adjudication, signed October 2, 2007, was heard on the

transcript of the record. We have inspected the record

and find no error in the judgment. We order the

judgment of the court below AFFIRMED.

We order appellant, B.D.S.D., to pay all costs

incurred in this appeal. We further order this decision

certified below for observance.

APPENDIX B

NO. 2007-08059

[Filed November 20, 2007]

IN THE MATTER OF )

B.D.S. )

CHILD )

)

IN THE DISTRICT COURT

HARRIS COUNTY, TEXAS

315™ JUDICIAL DISTRICT

ORDER ON B. D. S.

MOTION FOR NEW TRIAL

On _12/13/07_ the Court considered B. D. S. Motion

for New Trial, the response thereto, and the evidence

adduced at the hearing, and enters the following

findings:

IT IS ORDERED THAT B. D. S. Motion for a New

Trial is:

GRANTED

; Sees DENIED

IT IS FURTHER ORDERED that B. D. S. consent

to the APPEAL the adjudication is:

22a

GRANTED

DENIED

SIGNED on: _ 12/13/07

/s/ Ce ee

PRESIDING JUDGE

23a

APPENDIX C

IN THE DISTRICT COURT

OF HARRIS COUNTY, TEXAS

315' JUDICIAL DISTRICT

TRIAL COURT CAUSE NO. 2007-08059J

[Filed January 22, 2008]

IN THE MATTER.

OF

B.D.S.D.

APPELLATE COURT NO. 14-07-01079-ev

REPORTER'S RECORD

VOLUME 3 OF 3 VOLUMES

TRIAL COURT CAUSE NO. 2007-08059J

kk ARR KK

REPORTER'S RECORD

OE 2s 2K fs Kf ok OK

On the 13th day of December, 2007, the following

proceedings came on to be heard in the above-entitled

and numbered cause before the Honorable MICHAEL

SCHNEIDER Judge, Presiding, held in Houston,

Harris County, Texas.

24a

Proceedings reported by computerized stenotype

machine; Reporter’s Record produced by computer-

assisted transcription.

ELIZA MADRIGAL, CSR (713) 222-4950

[p.2]

APPEARANCES:

MS. CARI ALLEN

SBOT NO.17881650

Assistant District Attorney

1200 Congress, 6th Floor

Houston, Texas 77054-1603

(713) 578-3900

ATTORNEY FOR THE STATE OF TEXAS

MS. ANN JOHNSON

SBOT NO. 24032595

5000 Caroline

Houston, Texas 77004

713 301-0799

ATTORNEY FOR THE RESPONDENT

MS. JEANNETTE M. DUER

SBOT NO. 00793645

111 West 15th Street

Houston, Texas 77008

713 869-6200

ATTORNEY GUARDIAN AD LITEM

[p.3]

25a

VOLUME 3

REPORTER’S RECORD

December 13, 2007

Page

muta Tor PtGer THiAs oc oe ee eee 9

COPE OT nk ee es eee ee aes 14

Pe ee ee ee ee 15

Court Nenorters Certificate ......cccs ine eeen 16

[p.4]

MS. ALLEN: Petition No. 2007-08059J. Ms. BS.

D. had been adjudicated delinquent of the offense of

prostitution. There is a motion for new trial. It is the

State’s contention that Respondent needs to be present

during the hearing.

MS. JOHNSON: Your Honor, Respondent’s

counsel who has been appointed as the ad litem to

represent her, I have also asked another attorney Mr.

Jake Johnson to go with me.

I have talked to my client and informed her that I

am standing here to represent her and raise legal

issues on her behalf. I have asked her if she wants me

to go forward and she has stated that she does.

However, I’m asking that she not be present for

this motion for new trial because of the nature of legal

argument that I’m going to represent. The argument

26a

is that she has been charged with the offense and

adjudicated of prostitution. However, under Section

43.05 --

MS. ALLEN: Waita second. This is what I want

her here for. She needs to be here.

MS. JOHNSON: But the issue that I’m raising

is that she was not questioned as to whether or not she

was being compelled. I don’t want her to know that

that is a legal issue because I don’t want there to

be a suggestion that because she heard the legal issue

somehow it’s tainted any investigation or any

information that she may provide the State.

THE COURT: Before we get to that. Do you

have any kind of case law that would suggest that

going forward in any juvenile proceeding without the

Respondent actually being present?

MS. JOHNSON: I don’t believe that she needs

to be here because I’m the ad litem who is representing

her. Because it’s a motion for new trial and I’m not

presenting evidence, necessarily testimony on her

behalf, I’m representing the legal issue.

I’m objecting to her being here because of the

nature of the argument and the fact that it is

information -- don’t want it to be suggested by the

State that if she finds out that she is being compelled

and she says that, it makes her immune.

27a

Nobody has questioned her based on the report that

indicates she was living with an adult male despite the

fact she is a runaway. That is worthy of questioning

why she may have been out prostituting, where the

money she was making was going because she is not of

the appropriate age to live or contract on her own.

So presumably, that is an adult which may need to

be looked into. That investigation hasn’t been done.

[p.6]

MS. ALLEN: My concern is, and I mean this

respectfully. I think you are trying to do the absolute

best, but being the ad litem and being an attorney in

this situation is a huge conflict of interest. Because she

is espousing a legal argument that she doesn’t know is

based in fact yet because she just said she doesn’t

know, there is evidence that the child was compelled.

And she’s saying that the child shouldn’t be here. It’s

a huge conflict. I’m incredibly uncomfortable with that.

THE COURT: Where is the child right now?

MS. JOHNSON: Back in the holdover, Judge.

THE COURT: Does she have a -- is there a

guardian that we have?

MS. JOHNSON: The report indicates that at the

time she came in her parents were not involved. So I

don’t know of it. But akin to say that, somehow it is

the State’s responsibility to investigate. It’s a mandate

to them as to whether or not this child was being

compelled. That investigation wasn’t done. And it’s the

28a

State’s responsibility. And if they find it, then the child

is immune.

MS. ALLEN: That is not true. Okay. Now we’re

arguing motion for new trial. I want the child here. I

feel incredibly uncomfortable proceeding without the

child being here. We don’t even know that she wants

[p.7]

a new trial. She may be perfectly happy where she is.

MS. JOHNSON: She has stated to me in the

presence of Mr. Johnson when I let her know I was

raising legal issues on her behalf, which may or may

not make this adjudication void. She stated, I don’t

want this to stick with me. I asked her if she wanted

me to proceed and she said yes.

THE COURT: I would actually at this point

agree that not only does she need to be here, but it’s

required that she have a guardian. I understand we’re

very much pressed for time here today. And although

were in the middle of another hearing I would

certainly not have a problem entertaining this hearing

with a guardian.

Is there some attorney we can have here to be

appointed to be her guardian and take this up a little

bit later maybe on a break or something?

I appreciate your patience on this. And I

understand that you’re pressed for time. Let’s do that

and on our next break. We will do so.

(Brief recess.)

29a

THE COURT: All right. Back in the record and,

Ms. Duer, you are?

MS. DUER: I’m the guardian ad litem for B. S.

appointed by the Court.

{p.8]

THE COURT: Have you had a chance to talk

with your client?

MS. DUER: I have spoken with her and I would

prefer that she not be present for this hearing also. I

think it’s in her best interest that she not be present,

but I'll let the attorneys argue about why based upon

what I understand the law to be in this situation.

I think it’s in her best interest so that future

testimony or evidence that may be elicited from her, or

she doesn’t hear why we're here and then twist that

around to fit the situation. But I’ll let them argue to

you.

MS. ALLEN: I understand their contention that

if B. S. hears that she if she was compelled she could

be given immunity. That’s their contention. They don’t

want her to hear that and then testify I was compelled

or I wasn’t compelled, whatever.

My issue is if they are asking for a new trial

because she was compelled, they haven’t presented any

evidence that she was compelled. So it’s a circular

argument that they’ve got instead of going and talking

to her about the facts that they are saying is the basis

for new trial, they are just arguing that they might

30a

exist so therefore we need to have a new trial. I find

that goes against every modicum of justice

[p.9]

MS. DUER: I would say that I’m not in the

position to ask her those kinds of questions. That it

would need to be an expert a psychologist or something

like that who has dealt with those issues of

prostitution and girls underage who have been

sexually abused to ask those specific kind of questions.

And I don’t think I’m the person to ask that. I’m

one of these, cut to the chase and tell me what is going

on. And that may not be the proper form or venue or

way to doit. I think there should be a proper setting in

which to ask her those questions.

THE COURT: You’ understand, it’s my

understanding, that today is the last day the Court

would have jurisdiction to grant a new trial?

MS. JOHNSON: It’s actually Saturday, but, yes,

Judge, I would like to get it today to make sure things

are in order. The respondent’s attorney's position on

this, I filed motion for new trial because I happen to be

her counselor at the detention court hearing the day

after this offense occurred she got brought in.

On reading the report and the fact that she was a

runaway, that she was living with an adult male who

she didn’t want to give information about, the issue

was raised to the State in front of Judge Malazzo and

the prosecutor at the time.

[p.10]

3la

There is a concern here and it is the State’s

obligation to protect this child, and it is the State’s

responsibility to investigate. This is not an affirmative

defense. It is not the Respondent’s obligation to

provide the information to the State to give them

immunity.

If the State investigates and if they find out the guy

that you were living with may have been causing you

by any means to commit prostitution, then this child

should not be branded with label of prostitute simply

because they did not investigate and the issue was

raised despite the fact that it didn’t mean to be by the

Respondent.

That is the basis for the motion for new trial, which

is what is the harm in getting this right before we

actually come in here to prosecute her.

THE COURT: I think Ms. Allen’s position is

there is no evidence before the Court -- that there is no

new evidence or it was not done correctly.

MS. JOHNSON: I don’t know of any

investigation done by the State and the legislature

imposed on them in Section 43.05. They are the ones

that are here to protect the children. If you are under

17, if you are caused by any means to commit

prostitution, then that adult is subject to second

degree felony. That

[p.11]

is the higher charge. That is the real target that the

legislature wants them to go after.

32a

The Department of Justice and the National Center

for Missing and Exploited Children articles which are

referenced in motion for new trial indicate that there

is some level of suspicion when girls are runaways

when there is some reference of a boyfriend or

something like that, that that may be their pimp.

With that information to do nothing -- all they have

is a page and a half -- to do nothing to question or find

out if the child under 17 who they know agreed to sex

for $50 as a fee, why? Was anybody benefitting? Who

taught you that $50 is an appropriate fee for this?

None of those questions were asked. None of those

questions have been answered. And that is a violation

due process before giving her a conviction to not do our

part as the State.

MS. ALLEN: First of all, while I appreciate her

viewpoint, there is no mandate for the State to

investigate. It is not the State’s duty to investigate

whether or not someone is compelled. If there is any

evidence certainly, we should investigate. But the

mere fact she was living with an adult male even

though she was only six weeks away from being an

adult herself.

[p.12]

MS. JOHNSON: Criminally 17.

MS. ALLEN: That is not a huge red flag. Twelve

and living with adult male, that’s a red flag. Sixteen

and living with an adult mail who could be just 17

years old is not a red flag and does not raise any duty

on the State.

33a

The legislature states that a 16-year-old can

consent to sex sometimes. It’s not necessarily

compelled depending on the age of the person-they are

having sex with. It can be an affirmative defense, and

the statute itself assumes that a juvenile can commit

prostitution. So there is no legal basis for this motion

for new trial to be granted.

The statute itself says a person commits an offense

if he knowingly causes by any means a person younger

than 17 years of to commit prostitution. In and of itself

that says a child younger than 17 can be a prostitute.

MS. JOHNSON: We disagree. The statute says

17 and under, not 12 or not what’s the situation. The

statute imposes the protection on anybody 17 and

under and the Courts have reviewed this issue

MS. ALLEN: It actually says younger than 17.

MS. JOHNSON: 364 days, 23 hours, 59

[p.13]

minutes they are entitled to that protection. This child

was not granted that protection. By the fact issue was

just a few days of being or not, there was no

investigation. And the cases that have reviewed the

statute that the State looked at in Wagoneer, which

are reverenced in the motion for new trial, they

indicated that the offense of prostitution doesn’t even

have to be committed in order for there to have been

compelling prostitution.

But this case this child did agree to sex for $50, so

they know that the offense or the allegation of

34a

prostitution was there, but nobody questioned why.

And the minute somebody comes into the system

under the age of 17 with the red flag of being a

runaway, with the red flag of living with an adult that

she doesn’t want to disclose, it is the State’s

responsibility to follow up and ask those questions,

why, before tagging her with a label of a prostitute.

That is violation of due process.

MS. ALLEN: However, Your Honor, the State

would not have been allowed to speak with her, would

not have been allowed to do the investigation, would

not have been allowed to do anything because she was

represented by counsel and no lawyer asked us to

speak to her, therefore, we could not have spoken with

her. I could

[p.14]

not have sent a police officer there and said whatever

to investigate because she has the Sixth Amendment

right to counsel. She was represented by a competent

lawyer. That lawyer did not ask us to investigate

anything. The State should not be held to that

standard.

MS. JOHNSON: Your Honor, again our

response is it’s not her obligation to do it. It’s not the

Respondent’s burden. Ii’s not an affirmative defense.

It is an obligation by the State and I would again

object because in this case this issue was raised to the

State to make them aware and nothing happened, not

while we couldn’t so we didn’t. Nothing happened. No

investigation was done. No question about it.

35a

THE COURT: I understand your concern. I

don’t see any legal basis to grant a new trial. Although

it sounds like she’s certainly indigent, I have no

problem appointing her an attorney for appellate

purposes. I don’t see a conflict since you were not there

at trial with you being the appellate counsel if you feel.

MS. JOHNSON: Yes, Your Honor, I would ask

to be appointed as the attorney and ask that the Court

make a docket entry that permission to appeal is

granted.

THE COURT: I will do that.

[p.15]

MS. JOHNSON: Thank you, Your Honor.

(Adjourned)

[p.16]

THE STATE OF TEXAS

COUNTY OF HARRIS

I, Eliza Madrigal, Official Court Reporter in and

for the 315th District Court of Harris County, State of

Texas, do hereby certify that the above and foregoing

contains a true and correct transcription of all portions

of evidence and other proceedings requested in writing

by counsel for the parties to be included in this volume

of the Reporter's Record, in the above-styled and

numbered cause, all of which occurred in open court or

in chambers and were reported by me.

36a

I further certify that this Reporter’s Record of the

proceedings truly and correctly retlects the exhibits, if

any, offered by the respective parties.

I further certify that the total cost for the

preparation of this Reporter’s Record is $154.00 and

was paid by Harris Co. .

WITNESS my hand this the 20" day of January,

A.D., 2008.

/s/

ELIZA MADRIGAL, Texas CSR #6073

Official Court Reporter

315th District Court

1200 Congress Avenue, 7th Floor

Houston, Texas 77002

(713) 222-4950

Certification Expires: 12-31-08

37a

APPENDIX D

IN THE 315 TH DISTRICT COURT

OF HARRIS COUNTY, TEXAS

2007-08059J Delinquency

[Filed October 2, 2007]

IN THE MATTER OF )

B.D.S.D. )

AKA: )

)

Date of Judgment:

Date of Disposition:

Probation Beginning:

Probation Ending:

Respondent’s Date of Birth:

Date of Offense:

JUDGMENT/ORDER

10/2/2007

10/2/2007

10/2/2007

10/1/2008

10/7/1990

9/13/2007

STIPULATION TO THE EVIDENCE; or

NOLO CONTENDERE; and BEFORE COURT-

WAIVER OF JURY TRIAL

Attorney for State: C. M. ALLEN

Attorney for Respondent: OAKES, NA

COKINOS

Adjudicated Offense:

TALIA

38a

PROSTITUTION- GENERAL Any other counts, if

any, are hereby nonsuited.

Vi Misdemeanor B

Affirmative Findings

VY] Child found to have engaged in Delinquent Conduct

7] Child in Need of Rehabilitation

* Ok OK

V) Respondent is a child under the meaning of Title III

of the Texas Family Code. Disposition should be made

for the child’s protection and for the protection of the

public. Disposition is in the best interest of said child’s

health, safety, morals and education.

WY) The Court finds that the best interest of the child

and of the community will be served by removing the

child from his/her home as referenced in Exhibit A

incorporated herein, and the Court finds that

reasonable efforts were made to prevent or eliminate

the need for the child’s removal from the home and to

make it possible to return home as referenced in

Exhibit B incorporated herein. The court finds that the

child, in the child’s home) cannot be provided the

39a

quality of care and level of support and supervision

that the child needs to meet the conditions of

probation. IT IS FURTHER ORDERED that the child

be removed from his/her home and the Court approves

the removal. The Court further finds that the Harris

County Juvenile Probation Department is responsible

for child’s care and placement.

Disposition and Placement:

VY} Custody to CJPO

Name of Court Ordered Parent(s), Guardian(s),

or Custodian(s) here:

Court Costs to be paid through: Harris County

District Clerk, P.O. Box 4651, Houston Tx 77210-4651.

Court Costs funds shall be deposited into the

Harris County General Fund

Court Costs Payee: WAIVED - Due to Inability to Pay

The following person(s) shall be responsible for full

payment:

Supervisory Fees to be paid through: Harris County

District Clerk, P.O. Box 4651, Houston Tx 77210-4651.

Supervisory Fees shall be deposited into the Harris

County General Fund

40a

Supervisory Fees Payee: WAIVED - Due to Inability to

Pay

The following person(s) shall be responsible for full

payment:

[p.2]

Community Service - Number of hours and

terms:

15 HOURS

Attorney Fees Assessed to be paid through: Harris

County District Clerk, P.O. Box 4651, Houston Tx

77210-4651.

Attorney Fees shall be deposited into the Harris

County General Fund

Attorney Fees Payee: WAIVED - Due to Inability to

Pay

The following person(s) shall be responsible for full

payment:

Texas Drivers license Restrictions: No Driver

License Restrictions

VY) The respondent’s thumbprint is affixed to this order,

in compliance with Section 54.04 () of the Texas

Family Code.

4la

(Thumbprint is attached and made a part of this order

thereof)

Respondent is ordered to participate in the

following programs:

Vi GED Program

Special Instructions: DECISION MAKING

WORKSHOP, ATTEND SCHOOL DAILY.

a

Vi Any other rules set by HCJPD

= me

Rules of Probation:

R1. I will report to my Juvenile Probation Officer, as

requested, and will report any change of address,

school or employment within three days.

R2. I will attend my home school or another accredited

school (all classes) every day, unless I have an excused

absence, OR, if legally excused from school, will work

full time each day. I will report within 24 hours every

absence from school to my Juvenile Probation Officer.

R3. I will remain within the limits of Harris County

and will leave the County only with my Juvenile

Probation officer’s permission

42a

[p.3]

or when in the company of my parent(s) or guardian.

R4. I will not violate any law of the State or those of

any place I may be located.

R5. I will not leave my Court Placement without

lawful permission, and I will obey all the rules of my

placement.

R6. I will be in my Court Placement each evening by

7;00 PM from Sunday through Thursday and by 7:00

PM on Friday and Saturday (to remain until 6:00 A.M.

each day following), unless I have specific permission

from my Juvenile Probation Officer or am with my

parent/guardian.

R7. I will attend and participate in any program

required by my Juvenile Probation Officer.

R8. I will submit myself to random urine specimen

analysis at a location and time specified by personnel

of Harris County Juvenile Probation, reveal to said

authorized personnel proof of any medication legally

prescribed for me prior to submitting specimen. A

urine positive for any controlled substances, dangerous

drugs, or marijuana, not legally prescribed for me may

result in adjudication of delinquent conduct or

revocation of probation.

RY. I will report to my Juvenile Probation Officer

within 24 hours, any citations received to appear

before a Justice of the Peace or Municipal Court.

BE IT REMEMBERED that this cause being called for

trial, came on to be heard before the above court with

the above numbered and entitled cause and came the

Sate of Texas by her Assistant District Attorney and

came in person the Respondent with his/her defense

43a

attorney, and the Respondent’s parent(s), guardian(s),

or custodian(s) and all parties waived a jury and

announced ready for a hearing; and there upon the

Court, after hearing the pleading of all the parties and

hearing the evidence and argument of counsel, finds

beyond a reasonable doubt, that said child committed

the offense(s) alleged in the petition and/or established

by the evidence

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED by the Court that the respondent engaged

in delinquent conduct or is a child in need of

supervision (consistent with the affirmative findings

above).

IT IS FURTHER ORDERED, that said child is hereby

placed in the custody of said parent(s), guardian(s), or

custodian(s), as indicated above, who will be

responsible for the child’s care and placement, under

the rules of probation (if indicated above) for the

period indicated above, but not to or beyond the child’s

18th birthday, and as listed on the page attached

hereto and which is made a part of this order hereof,

subject to further orders of the Court.

THE CHILD WAS NOTIFIED, of his/her right to

appeal in accordance with Chapter 54.04(h)(1) and as

required by section 56.01(n) of the Texas Family Code.

Further, the child was notified of his/her right to seal

his/her records in accordance with chapter 54.04(h)(2),

under the procedures for sealing records in Section

58.003 of the. Texas Family Code.

Recommended and Signed on this the

_ dayof_ 20,

Associate Judge/Master 315”

Harris County, Texas

Approved and Signed on

day of Oct-2 2007

[s/ _

Judge, 315™ District Court

Harris County, Texas

/s/

Signature of Respondent

/s/

Print obtained by

District Court

LU

& 2S

A4H22

EZ

| é : <

es ots

Juveniles Rit aeinb print

a t,

= 25

45a

IN THE 315™ DISTRICT COURT

HARRIS COUNTY

STATE OF TEXAS

IN THE MATTER OF S. B. NO: 200708059J

Exhibit B

The court finds that the following. efforts were

considered in determining whether reasonable efforts

have been made to prevent or eliminate the need for the

child to be removed from (his or her) home:

* ok ok

bd

The nature of the offense and/or circumstances

in the child’s home necessitates removal! of the

child from the home.

= = =

46a

APPENDIX E

[SEAL] OFFICIAL NOTICE FROM

SUPREME COURT OF TEXAS [POST

Post Office Box 12248 MARK]

Austin, Texas 78711-2248

RE: Case No. 09-0659 DATE: 2/12/2010

COA #: 14-07-01079-cv JIC# : 2007-08059J

STYLE: IN THE MATTER OF B.D. S. D.

Today the Supreme Court of Texas denied the

petition for review in the above-referenced case.

(Justice Guzman not sitting)

MAIL TO:

MR. MICHAEL A. CHOYKE

WRIGHT BROWN & CLOSE LLP

THREE RIVERWAY SUITE 600

HOUSTON TX 77056

47a

APPENDIX F

[SEAL] OFFICIAL NOTICE FROM

SUPREME COURT OF TEXAS [POST

Post Office Box 12248 MARK]

Austin, Texas 78711-2248

RE: Case No. 09-0659 DATE: 5/7/2010

COA #: 14-07-01079-cv JC# : 2007-08059J

STYLE: IN THE MATTER OF B. D.S. D.

Today the Supreme Court of Texas denied the

petition for rehearing of the above-referenced case.

MAIL TO:

MR. MICHAEL A. CHOYKE

WRIGHT BROWN & CLOSE LLP

THREE RIVERWAY SUITE 600

HOUSTON TX 77056

48a

APPENDIX G

IN THE DISTRICT COURT

HARRIS COUNTY, TEXAS

315™ JUDICIAL DISTRICT

PETITION NO. 2007-08059)

[Filed November 29, 2007]

IN THE MATTER OF __ )

)

BDS ,

)

RESPONDENT )

)

RESPONDENT’S AMENDED MOTION

FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW B DS, “Respondent,” in the above-

numbered and entitled cause and files this her Motion

for New Trial. Respondent seeks to withdiaw her plea

of “true” and have a new trial; or, alternatively,

Respondent seeks the Court’s permission to appeal her

adjudication as a delinquent based on a charge of

prostitution on the Constitutional grounds of absurd

result and denial of due process.

In support, Respondent respectfully shows the

Court the following:

49a

1. FACTS

Respondent was adjudicated on October 2, 2007, for

a charge of prostitution following an undercover

investigation. Prior to the plea, at Respondent’s

detention hearing, the State was informed of evidence

which might make her immune from prosecution.

On September 14, 2007, Counsel appeared in the

detention court on behalf of Respondent. The offense

occurring September 13, 2007, and the adjudication

following on October 2, 2007. During the initial

detention hearing, counsel spoke in open court to the

Presiding Judge, the Honorable Beverly Malazzo, and

the State’s attorney, bringing to their’ attention,

outside the presence of Respondent, legal arguments

based on sections 43.05 and 43.06 of the Texas Penal

Code.

Counsel referenced the known information about

Respondent, the applicable sections of the Penal Code

and the position that the State has a responsibility to

investigate any person who compelled the prostitution.

The report indicates Respondent was a runaway and

admitted living with an adult male whom she did not

want to disclose his name. These issues were raised

despite the fact, immunity from prosecution by

identifying a compeller is not an affirmative defense

that puts the burden on the Respondent.

Instead, Respondent was adjudicated October Z,

2007, and placed in the Custody of the Chief Juvenile

Probation Officer. This Counsel did not represent

Respondent at her trial; but the trial judge appointed

this Counsel for purposes of filing this Motion for New

Trial. Additionally, all Court Records of the Detention

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Hearing were destroyed by the Court based on

common practice in the Detention Court, when the

case was adjudicated.

Ii. OBJECTIONS TO THE ENTRY OF

JUDGMENT AND REQUEST FOR NEW TRIAL

Respondent objects to entry of Judgment as a

Delinquent ana seeks a new triai on the grounds that

an adjudication of prostitution as it applies to this

minor should be set aside because it leads to an absurd

result and denial of due process.

Ul. STANDARD FOR A MOTION FOR

NEW TRIAL

Juvenile proceedings are “governed by an unlikely

and sometimes perplexing hybrid of civil and criminal

law.” State v. Cd.F., 183 S.W.3d 841, 847

Tex.App.—Houston [1 Dist.}], 2005, pet. denied). An

appeal from an order of a juvenile court is governed by

the requirements pertaining to civil cases generally.

Id.' A juvenile-delinquency proceeding is considered a

civil proceeding, but is quasi-criminal in nature. Id.

When a gap exists between the hybrid nature of these

proceedings, juveniles should be afforded the same

rights as an adult criminal defendant. See generally Jn

re E.Q., 839 S.W.2d 144, 146-47 (Tex.App. —Austin

1992, no writ) (recognizing juvenile’s right to withdraw

his plea of “true” where ‘n that case the plea was not

' Tex.Fam.Code Ann. § 56.01 (Vernon 2006) (A motion for new

trial seeking to vacate an adjudication is timely if the motion is

filed not later than the 30" day after the date on which the

disposition order is signed.)

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made knowingly, voluntarily and intelligently and a

new trial be granted.)

The Court has intrinsic power to grant a new trial

in the interest of justice. State v. Gonzalez, 855 S.W.2d

692, 694 (Tex.Crim.App.1993) (citing Reyes v. State,

849 S.W.2d 812, 815 (Tex.Crim.App.1993) (recognizing

the trial court may grant a motion for new trial in the

interest of justice e xn though the grounds for

granting a new trial are not specifically enumerated in

rule 21.3 of the Texas Rules of Appellate Procedure.)

In this case, a new trial promotes the interest of

justice by protecting the juvenile Respondent from the

label of a “Prostitute” as a result of an agreement of a

sexual act with an undercover officer, an act which the

Legislature has specifically mandated that she cannot

commit and may be immune from prosecution under

this circumstance.

1. Absurd Result

Respondent urges the court that prosecuting a child

as a prostitute reaches an absurd result. Prosecuting

a child as a prostitute threatens the legitimacy of

confirmed Texas laws that protect children from

sexual exploitation. The Texas Legislature could not

have intended, with a blanket adoption of the Texas

Penal Code to juveniles, that children, whose consent

to sex with an adult has no legal effect, can face

criminal charges for the act they are protected from

committing with an a‘ult. In this case, the State

prosecuted Respondent for prostitution despite

mandates that children are not legally responsible for

consenting to sex with adults. When, as here,

application of the plain meaning of a statute leads to

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an absurd result, the Texas Court of Criminal Appeals

applies the examination of extra-textual factors to

discern legislative intent. May v. State, 919 S.W.2d

422, 423 (Tex. Crim. App. 1996) (citing Boykin, 818

S.W.2d at 785-86). The Courts look to legislative intent

where it is known and, here, at least three confirmed

sections of the Texas Penal Code 22.021 (Aggravated

Sexual Assault), 43.05 (Compelling Prostitution) and

43.06 (Immunity) show an intent to protect children

from sexual exploitation and prosecution. See Tex.

Penal Code §§ 22.021, 43.05 and 43.06 (Vernon 2006).

Specifically, section 43.05 of the Texas Penal Code

provides that if anyone under 17 has been caused by

any means to commit prostitution, then under section

43.06 the child is immune from prosecution. The Texas

legislative focus is on protecting the child, who may be

subjected to prostitution, from the adults who exploit

them. It is absurd to suggest that Respondent must

carry the stigma of an adjudication based on a charge

of prostitution simply because the State failed to

investigate evidence, which may have provided her

immunity from prosecution if she was caused by any

means to commit the act.

Applying Respondent’s agreement to sex against

her not only directly contradicts the language and

intent of these other protective statutes in the same

chapter and section of the Code; but, it weakens them.

It does not make sense for the State to claim, under

the Texas Penal Code, that a child’s consent to sex,

under section 43.02, has legal effect, but a child’s

consent to sex, under 22.021 and 43.05, has no legal

effect. See Tex. Penal Code §§ 43.02, 22.021 and 43.05

(Vernon 2006) (emphasis added). These conflicting

applications of the same sections of the statutes cannot

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be harmonized to give effect to all of them. See Borden,

Inc. v. Sharp, 888 S.W.2d 614 (Tex. App. —Austin 1994,

writ denied) (reversing when: “We fail to see how the

two statutes can be harmonized so as to give effect to

both”; recognizing conflicting requirements in the tax

code as applied literally could not have been intended

by the legislature.)

When the State’s prosecution of a child for

prostitution cannot be harmonized wit) well-

established statutes that the legislature created, and

that the courts have enforced, to protect children, the

court should yield to the established statutory

language of sections 22.021 and 43.05 of the Texas

Penal Code. (Vernon 2006). It is appropriate for this

court to (1) grant new trial on the adjudication based

on the prostitution charge; or (2) grant permission to

appeal the case on the Constitutional grounds cf

absurd result, denial of due process, or on public policy

grounds.

2. Due Process

The cumulative failures of the State to investigate

the reported facts and protect Respondent, while

labeling her a prostitute, denied Respondent due

process.

Respondent’s’ prosecution as a minor for

prostitution denied her due process under both the

United States and Texas Constitutions. First, under

Texas law, Respondent is immune from prosecution

based on testimony given as to why and against

whoever may have caused her by any means to commit

prostitution. Tex. Penal Code § 43.05 (Vernon 2006).

Secondly, the State imposes a stigma on Respondent

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as an adjudicated prostitute, despite her legal inability

to consent to the very elements the State used to give

her that label. See generally Hindman v. State, 211

S.W.2d 182 (Tex.Crim.App. 1948) (recognizing the

offense of statutory rape is complete with or without

consent). The United States Supreme Court has

written: “Neither man nor child can be allowed to

stand condemned by methods, which flout

constitutional due process rights of law.” Haley v.

Ohio, 332 U.S. 596, 601 (1948).

The State has notice of the voluminous literature

on the issue of runaway children and their sexual

exploitation. The National Center for Missing and

Exploited Children (“N.C.M.E.C.”)? in conjunction with

the United States Department of Justice, Office of

Juvenile Justice and Delinquency Prevention

(“D.O.J.”), in a published study in 1999 regarding the

issue of Juvenile Prostitution, found: “[p]rostitution of

children is closely tied to life on the streets;” and that:

“laJecording to one US Department of Health and

Human Services report, up to 300,000 prostituted

children may live on the streets.” Eva J. Klain, J.D.,

“Prostitution of Children and Child-Sex Tourism: An

Analysis of Domestic and International Responses,”

National Center for Missing & Exploited Children

(April 1999) (“Prostitution of Children”), at 2.°

* The cited N.C.M.E.C. publications are available at

www.missingkids.com. They are in the “Featured Publications”

section of the “Sexual Exploitation” link in the “Topics of Focus”

section found on the home page. The page and links were last

visited on October 3, 2007.

. Klain is with the American Bar Association’s Center on Children

and the Law.

55a

Many of those “[rlunaway children often engage in

what some experts refer to as ‘survival sex,’ the

performance of sexual acts in return for food or

shelter.” See Paul Menair, Review of Selected 2001

Georgia Legislation, 18 Ga. St. U. L. Rev. 32, 37,‘ (Fall

2001) (citing Jane O. Hansen, “Runaway Girls Lured

Into the Sex Trade Are Being Jailed for Crimes While

Their Adult Pimps Go Free,” ATLANTA J. CONST.,

Jan. 7, 2001, at Al).

Because the State failed to investigate, how

Respondent began prostituting remains unanswered.

But, as one author noted:

Even if children first begin to prostitute for

money to survive, once in prostitution they may

find themselves working to support a pimp

rather than themselves. Young girls are

especially vulnerable to pimps who befriend

them and shower them with the attention and

affection (although feigned) that they did not

receive at home.

“Prostitution of Children,” at 2. Additionally, a

runaway child may be the target of a pimp: “If she is a

: Quoting Georgia’s Legislative History in 2001 when it made

pimping a felony recognizing “children are increasingly induced,

coerced, or compelled to perform sexual acts for the financial

benefit of third parties’ and to ‘express abhorrence for these

practices and .. . better protect children from sexual

exploitation.” Jd. at 44, see Georgia House of Representatives

Voting Record, SB 33 (Mar. 14, 2001), available at

http://www.legis.State.ga.us/Legis/2001_02/votes/sv0092. htm.

Texas passed its felony charge against those that sexually exploit

children in 1973. See Tex. Penal Code § 43.05 (Vernon 2006).

56a

runaway he will offer her food and shelter and vaguely

hint at the possibility of a job.” National Center for

Missing and Exploited Children, “Female Juvenile

Prostitution: Problem and Response,” Office of Juvenile

Justice and Delinquency Prevention and Office for

Victims of Crime (Second Ed., November 2002)

(“Female Juvenile Prostitution”) at 1. The N.C.M.E.C.

and D.O.J. “in recognition of the need to help these

young victims of exploitation” highlighted studies of

juvenile prostitutes and their pimps in 2002. Jd. at vii

— viii. They recognized:

An interesting observation is the relationship of

the juvenile to the pimp. The pimp is cast into

the role of benefactor/boyfriend with the

juvenile having a difficult time acknowledging

that he is a pimp. ... [__] she was aided by the

positive attention of the pimp or his efforts to

protect her.

Id. at 14. Pimps “look for young girls who are lonely or

rebellious, with low self esteem” and “prey

disproportionately on young runaway’ girls.

“Prostitution of Children,” at 4. (citations omitted).

The pimp may then initiate a_ sexual

relationship with the girl, continuing to become

the primary person in her life. This pretense of

love lulls the girl into thinking theirs is a

mutually developing relationship, making her

emotionally and psychologically dependent on

the pimp as a substitute for the family that

abused her or turned her away.

Id. at 4 (citations omitted). “Soon she finds herself

prostituting as a condition of her love for him. The

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young girl, however, continues to think of the pimp as

her boyfriend, and this perception of the relationship

sustains the control and abuse.” Jd. at 5. One of the

N.C.M.E.C. and D.O.J. studies also found that

“{gleneral psychological and emotional problems,

housing instability, substance abuse, educational and

vocational failure, and major problems at home have

all been cited as common precipitating factors in the

lives of prostituted children.” /d. at 3.

Both the National Center for Missing and Exploited

Children and the United States Department of Justice

call for bringing sexually exploited children like

Respondent into the system; however, not for purposes

of prosecution of the child but “to successfully prosecute

pimps and others for violations such as pandering,

soliciting, or promoting prostitution.” Eva J.; Klain,

J.D., “Prostitution of Children and Child-Sex Tourism:

An Analysis of Domestic and International Responses,”

National Center for Missing & Exploited Children

(April 1999) (“Prostitution of Children”), at 9-10.°

(emphasis added). Respondent’s conduct should have

brought her to the attention of authorities; and, given

the nature of the conduct, the State should have

protected Respondent within the juvenile justice

system; and investigated and imposed the criminal

sanctions, if any, against any alleged exploiter.

Not only is this position supported by the

N.C.M.E.C. and the D.O.J., the Texas Legislature got

this right in 1973 when it issued the mandate to law

enforcement and the juvenile justice system to protect

5 : ° > ‘ ‘

” Klain is with the American Bar Association’s Center on Children

and the Law.

58a

and not prosecute Respondent, when it codified the

Texas Penal Code. Section 43.05, makes pimping a

second degree felony. Tex. Penal Code § 43.05(b)

(Vernon 2006). Under section 43.05, the State has a

duty to investigate whoever causes by any means a

child to commit prostitution.® See also Waggoner v.

State, 897S.W.2d 510 (Tex.App.—Austin 1995, no pet.)

The Legislature’s mandate of a second degree

felony, with immunity for the child witness, illustrates

the legislature’s clear intent to protect the child as the

victim of sexual exploitation. See Tex. Penal Code

§§ 43.05, 43.06 (Vernon 2006). Further, the second

degree felony 2 to 20-year punishment range shows the

legislative focus to remove the one who causes anyone

under 17 to commit prostitution from the streets. See

Tex. Penal Code §§ 12.33, 43.05 (Vernon 2006). Taking

the child off the streets, without any consequence to

whoever may have caused her by any means to commit

prostitution, merely creates a vacuum in which the

compeller finds another child to fill the void.

While supervision and treatment is appropriate for

Respondent, the State cannot claim that the end result

of placement justifies any means to reach that result.

Here, the State directly violated Winship, where the

United States Supreme Court recognized that

“juveniles may be engaging in a general course of

° The burden to pursue the exploiter cannot be shifted to the child.

Protecting children from sexual exploitation under either sections

22.021 and/or 43.05 are mandates to the State. See Tex. Penal

Code §§ 22.021 and 43.05 (Vernon 2006). There are no affirmative

defenses listed. See generally Tex. Penal Code §§ 22.021, 43.05,

43.06 (Vernon 2006); see also Tex. Penal Code § 2 04 (Vernon

2006)(“an affirmative defense in this code is so labeled ...” ).

59a

conduct inimical to [their] welfare that calls for

judicial intervention.” In re Winship, 90 S.Ct. 1068,

1074 (1970) (“[T]he Due Process Clause does require

application during the adjudicatory hearing of ‘the

essentials of due process and fair treatment.’ “) Yet,

the Supreme Court mandated “the intervention cannot

take the form of subjecting the child to the stigma of a

finding that he violated a criminal law....” Id. Also, the

Court wrote, “good inténtions do not themselves

obviate the need for criminal due process safeguards in

juvenile courts” Jd. The cumulative failures of the

State to investigate and protect Respondent and in

stigmatizing her as a prostitute violates due process.

Respectfully submitted,

/s/Ann E. Johnson

Ann E. Johnson

Attorney for Respondent

SBOT No. 24032595

5535 Memorial Drive Suite F-802

Houston, Texas 77007

Tel: 713-301-0799

Fax: 713-523-8307

CERTIFICATE OF SERVICE

A true and correct copy of the above document has

been delivered to: [Handwritten: A.D.A. Kurt Hophe in

court for Kari Allen]

Kari Allen

Assistant District Attorney

1201 Franklin, Suite 600

Houston, Texas 77002

60a

Counsel for the State of Texas

/s/Ann E.. Johnson

ANN E. JOHNSON

DATE: November 20, 2007

Notice of Hearing

The above motion is set for hearing on December

11, 2007, at 9:00 a.m. in the 313" Judicial District

Court of Harris County, Texas.

SIGNED on , 2007.

Judge or Clerk