Opinion issued April 16, 2 024

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 22
- 00335
- CR NO. 01
- 22
- 0033 6
- CR

——————————— CLIFFORD MILTON , Appella nt

V. THE STATE O F T EXAS , Appell e e

On Appeal from the 337th District Court

Har ris County, Texas Trial Court Ca se No s . 1612515 and 1612516

OPINION Appellant Clifford Milton was indicted on two counts of t raffickin g o f a

c hild by prohibi ted conduct . In Cause N umber 16125 1 5, he was indic ted for the
offense of tra fficking of a child by causing the complainant to become the victim2

of sexu al assault , and in Cause Number 1612516, he was indicted for the offense
of trafficking of a child by causing the complainant to become the victim of prostit ution

. The charges were en h an ced with a pri or fel ony conviction for th e

o ffense of theft. The jury found Milton gui lt y o f both counts and t he trial cour t
sentenced M ilton to t wenty

- eight years in prison for each conviction

. In three i ssues, Milton argu es (1) the re was legally insufficient eviden ce to
pr ove he committed the offense of trafficking a person in Cause Nu mber 1612516
because he did not cause the complaina n t to commit prostitution, ( 2 ) t h e t rial court
ab u sed it s di scret ion in al lowing the adm i ssion of extraneous offense testimony , and ( 3 ) the ju dgment s should be mo difi ed to reflect (a) a finding on the enhancement parag raph s of “ N/ A ” ins tead of “ pleaded true ” and “ found true, ” and ( b) to state t he senten ces are to r un co ncurre n tly

. We affirm the trial court ’ s judgment as reformed. Backg round
Milto n was charged by indictment with two separate offenses. The first
indi ctment , filed in C ause N umber 161251 5 , alle ges that o n o r about September 20, 2018, Milton “ knowingl y transpor t ed[ed] [ Jane ] , 1 a person younger than 18 years of age ” and caus ed Jane to become the victim of a sexual assault. See T EX

.

1 W e u se pseudon yms t o p rote ct t he iden tity of the complain ant

. We refer to the co mpl a i n an t as “ J ane ” an d t o her fathe r a s “ Fath er
. ”3

P ENAL C ODE § § 20A.02(7)( C ) , 22.011

. 2 T h e second indictment , filed in C ause
N umber 161251 6, allege s that on or about No vem b e r 3, 2019, Mil ton “ knowin gly transpor ted[ed] [ Jane ] , a person younger th a n 18 years of age ” and caused her to engage in prostitution. See T EX

. P ENAL C ODE § § 20A.02(7)( H ), 43.05 (a)(2)

. The charges were en h an ced with a prior felo ny conviction for th e offense of theft

. Milton pled not guilt y to each c harge

. A jury convi c t e d M i lton of both offenses
and the trial court senten c ed him to t wenty

- eight years in prison for each count

. T h e Trial The State pr esented eleven witnesses during th e guilt

- inno cence phase of
trial.
A. Father Father has two children, Jan e and her brother. Fath e r te stified that J a ne was

“ very i ntelligent, quiet, lik e [d] to go out a lot, go t o eat, go fishing, liked to go on

vacat ion. ” Jane and Fathe r were c l os e a nd she had a “ great relationship” wit h her
brother.
In 2018, Jane ran away. 3 S h e was fifteen ye a rs old. She l eft a letter stating
she “ honest ly cannot live in this house no mo re. I just don ’ t li ke it. ” Jane wrote
that by th e time her family read the letter , she would be on h er way to Austin or

2 Unless ot herwise indicated, all references to the Texas Pe nal Code are to the stat utes as they e xisted when t he alleged offenses were committed.
3 Father testified Jane r an away on September 18, 2018

. T he letter Jan e le ft behind for her family is dated September 19, 2018.4

Dallas, and that i f she g ot a job, she would send m o n e y to the f a m ily. Jane wrote
that “ going to school, gett ing screamed at and all this stress ” w a s n ’ t fo r her. She
said s he would “ b e okay ” and would not “ end up dead. ” She continued, “ S o let me

propo se my dea l to you

. I g o to school, m ake money, and se n d you
- all money, and live somewhere else. I promise I ’ ll be good. But if it doesn ’ t work out, I ’ ll co me home and I ’ ll l et you take me to j uvie. That ’ s my deal. I know it ’ s kind of risky,
but it ’ s worth a tr y
. ”
When Father fo und Jane ’ s let ter, he file d a police report and started looking
for Jane on her social media

. Father also talked to Jane ’ s friends and classm a tes,
and he drove around every day. At first no one claimed to kn o w anything about
Jane ’ s whereabouts , b ut after a whi le, some kids gave F a ther “ some information
where she could be. ” Father went to pla ces “ where there [was] more pro stitutio n b ecaus e people gave [him] ideas where [Jane] could be; and they were no t wrong. ”
He testified t hat he “ started lo oking for [Jane] in the areas where t h ere was mor e prostitution because [he] had t h e feeli ng that . . . she had been kidn apped or

so mething. ” Father prepared a “ missing ” poster and his cousin f ound Jane ’ s pho to
on a website “ where s h e was b eing sold as a prostitu te. ”
Fat her found some of J a ne ’ s social media posts

. S o me of t hem were ads that
inclu ded her “ pr ices ” and t he pictures in some ads led Father t o one of the hotels
where Jane was stayin g
. Father r ec o g nized a furniture store in some of the ads and5

found a nearby “ America ’ s Best Valu e Hotel ” where the photos in the ad were

t aken. He we nt to t he hotel and cal led the police to meet him there but when they arrived, Jane w a s not at the hotel

. Father continued to l ook for Jane at vario u s hotels and created an account on a dating app cal l ed “ SKOUT ” t o look f or her

. One of h is cousins f o und Jane ’ s ad

on a n e scort websi t e named “ Erotic Monkey. ” The ad said “ Escort, massage, ” and above that, it said “ Houston es c o rt, 18

- 24, Latina. ” The ad provid ed a phone

n umber and described Jane ’ s body. Father ’ s nephe w called the listed phone
number t o s e t up a date with Jane , and Father wen t to a Mo tel 6 wh ere the date was
scheduled. Father calle d the police from the M otel 6 and the p olice arrived. They
knocked on the motel door , but the r o om was qui e t . T hey called out for Jane , but
there was no r esponse. The police did not have a war rant and did not break the
door down

. Father stayed for another thirty minutes and then went home . He
believed Jane was in the room , so h e returned to the hotel the n e xt day

. B y th e time Father returned, wh oever had b een in the motel room was gone
. Father testified that Jane ’ s ad s referred to h er by another name and age. One
said she was nineteen and used the n ame “ Alaina ” a n d another said , “ Houston escort, 18

- 24

. ” Jane was still fif teen at the time. The firs t ad said, “ h mu f or seriou s inquiries on ly. ” 4 The photos in the ad l ooked like selfies. Father d id not

4 “ HMU ” stands for “ hit me up. ”6

k n o w who uploaded the photo s or what phone t hey were uploaded from. The phone number on th e sec ond ad was the number Father ’ s nep hew called , but Father
d id not know who a n s wered the phone, whose phone was called , or where the phone was a nswered

. A week to ten days a fter Father looked for Jane at the m otel , Jane w as

recove red. One of the detectives c a l led Father to let him know

. Jane was taken to
Texas Children ’ s Hospital and Father and other family members m e t her ther e.
Jane looked skinny and as if she had not slept in a long time. When Jane saw her
Fat her, “ She [ran] to me and she h ugg ed me a nd c r ied and squeezed m e, and I did the same thing. ” Fa ther testified , “ She was happy to see us for sur e. ” Jane h ug ged
her mother and brothe r and was taken to the hospital to be ex amined

. Father testified tha t s ince Jane returned home , she h a s not run away a g ain. He stated, “ She wanted to do everything right this time and she knew what s he did

w as w r o ng. I think sh e became more mature. She wanted to st udy more. She
wanted to be more involved with ev er ybody[.] ”
B. David Riggs Sergea n t David Riggs of the Hous t o n Police Depar tment ’ s ( “ HPD ” ) Human
Traffic king Division was assigned to Ja ne ’ s missing p erson case, wh i c h was
identifie d as possibly having a h uman trafficking aspect. He identified se veral websites, includi ng Erot ic M onkey , that are known for publishi n g escort7

a dvertisements. He testified abo ut an ad with Jane ’ s pho to that ref erred to
nineteen

- year
- o l d “ Al aina ” and conta ined the language “ h mu for serious inquiries only

. ” Serg ea nt Riggs testified that t h e language “ hit me up for serious i nquir i e s only ” is consistent with language he has seen in escort adds. He said the ad was

“ p ropositioning for some t hing ” a nd that the phot o was consistent with w ha t he has
seen in escort advertiseme nts. It contained “ terms [] t hat w o u ld indicate that they ’ re advertis i n g for sex. ” Serg ea nt Riggs testified that juvenile human trafficki ng victim s usuall y

come f rom broken homes , or C PS c u stod y, but i n some cases, they are girls fro m
goo d homes who “ feel like they might n eed mor e freedom o r they need to get out
of the ho u s e or somethi ng like tha t. ” He testified the most prev alent wa y of attracting v ictims is th r ough social medi a, whic h “ plays a very big rol e. ”
Traffickers at tract victims either by “ asking to date th em ” or by “ s e nding them pictures of going to parties o r videos of going to parties and having money and
nice cars and trying to pe r suade them t h at way. ” He testified ther e are several

t echniques traffickers use to k eep the victims from returning home, such as using
f o rce, pretending to f

all in l ove with the v i ctim , getting the victim addicted to drugs, th reatening to kil l someone close t o the victim , or is olating the victim, taking her cell phone a nd tel ling her th at h e r famil y doe s not want h e r back.8

Sergeant Riggs testified that when investigating human traff icking, HPD and other law enforcement age ncies u se a search en g ine cal l ed “ Tra ffic J am ” to search
fo r ads using certain pho ne numbe rs, or by using facial recogni tion to fi nd victims.
Traffic J am is a t ool t hat helps generate leads and develop traffi c king cases.
U s ing a phone number he lo cated through Traf fic Jam , Sergeant Riggs
l o cated multiple ad s i n v olvin g a gi rl he later learned was Jane

. When he ran the search, he did not know what Jane looked like b u t was simply searching a p hone

n umber. Tha t phon e n umber led to another phone number and additional ads.
Phone recor ds were intro duced into evidence that indicated Milton had one of the phone number s that turned up on Traff ic Jam

. T h e phone number listed on at least
two ads with Jane ’ s photo bel o nged to Milton in October and November 2018.
Se r geant Riggs also u sed a search engine called Wh o oster as a “ l ead

- gen e rating ”

to ol. Whoost e r was d e veloped to collect data from phone numbers. Whooster also
i ndicated M ilton was linked to a phone numbe r on some of Jane ’ s ads

. C. Offi cer Nadee m A slam
Officer Nadeem Aslam is an HPD patrolman. He wa s working th e night
shift on November 5, 2018 . He was dispatc hed to a call at a Motel 6 at 2900 W est
Sa m Houston Pa rk way at 11:30 p.m. regar ding a missing person
. He testified th e h otel ha s a reputa tion for “ drugs, sex tr affi cking, and prosti tuti on. ” Office r Aslam
understood f

rom the dispatch that Father had located h is dau ghter, who had been9

missing, at th at hotel

. Officer Asla m met F ather at a nearby gas stat i on to get mor e details. Officer Aslam then spoke to the hot el front de s k clerk and manager

. They
were told t he room where F at her believed Jane was sta ying was occupied.
Father and sev eral o fficers went to the room. Office r Aslam and his partner

went t o the door and k nocked. They heard ma le and fema l e voices

. Officer Aslam put his ear to th e ho tel roo m door and listened for a moment and t hen knocked and said, “ H P D

. ” Aft er they knocked , th e manager tried to open the door with a key , but the door was l ocked from the insi de. Officer Asl am did not hear any arguments or screams insid e the room. They wa i t ed ou tside the room twenty

- fiv e to thirty minutes see if anyone approach ed or left the room. T here was no probabl e cause to break the door down. They n ever s a w Milton or a n yone else in the room

. The officers did not see Milto n on the property that night

. D. O fficer Brad Bourgeois
HPD Officer Brad Bo u r geoi s worked in the vice div i sion in 2018

. On November 7, 2 018, he was working the night shift con duc t ing an und ercove r
opera tion called “ O ut

- C all ” where the girl comes t o the john. 5 He testified that t h e
p u rpose of th e investigation was to target escort websites. “ We put an empha sis on trying to g o through t he ads a nd trying to f ind the youngest

- looking gi r ls we could
find b e c au se human traff

icking exists on these [w]ebsites. And we found that i f we

5 A “john ” is a person who pays for s ex
.10

c o uld possibly find and get a younger girl tha t was working on th ese [w]ebsites that possibly it co uld be rela ted to a bigger and mo re complex investigation th a n jus t a normal pr o s ti tu tio n inv estigation. ” According to Officer Bo u r geois , t h e vice
division seeks “ to stop p rostitu tion and to rescue girls who are in need of rescuing. ”
As an unde rcover offi cer in an “ Out

- Call ” operation , Officer Bo u r geois

c onnect s w i th som eone in a n ad on a n esc ort w ebsite. He do es so by t e x t message

or phone call or bot h. On November 7, 20 18, he came acro ss an ad on
Listc rawler.com, an esc ort we bsite , and he contacted the n umber on the ad. Th e ad had a phot o of a fema l e in “ [unde r w ear] and ta nk top posing on a bed. ” He said the age listed in an escort ad is “ hardly ever accurate ” becaus e “ [m]ost of the girls
in those ads e i the r want to be o lder or want to be younger. ”
After c alling the number in the ad , O fficer Bo u r geois sp oke w ith “ A l aina ” and once they ag r eed she w ould come to him, they began text messag ing. He used
h is under cover name, “ Jos h. ” They were to meet in room 439 at the Hyatt Regency located on 4 25 North Sam Houston Fre eway
. A t first when “ A l aina ”
arrived , they m a de sm a ll talk. The talk then turned sex u a l in nature , and they made an agreement for straight se x for $150. 6 , 7 The hotel room had an adjoining room
with a do or that led to another r oom wher e the surveillance team wa s located.

6 P hone records indicate the agreement was for $250.11

After the agreeme nt was m ade, Of ficer Bo u r geois o p ened the door whe re the

arrest team was w aiting . T he y cam e in and took the girl into custody. The arresting officers were weari ng clea rly marked HPD jackets and uniforms.

“ Al aina ” appeared “ relieved ” a n d “ thanked [them] immedia t ely, wh ich was very

uncommon. ” Officer Bourgeois identified “ A l aina ” a s Jane

. The officers interv i e wed Jane and she told the m her story. S he wa s receiving cell phone calls while they spok e. She told t he police she arrived in at
the hotel in a black C h evy C am aro. T he o ff icers went downst ai rs to the p arking lot and stopped a Camaro matching that description . At that same time , Jane called
the n umber that had been text ing her and the phone tha t was in th e Camaro rang

. Henny Baham , Ronald Calloway , and an unid entified f ema l e were in the C ama r o. Baham is Milton ’ s cousin , and Calloway is Milton ’ s brother. The ringing p hon e was recovered from Ba ha m , who with Calloway had driven Jane to the hotel. The
other phone was recovered from Jane. Milton was not i n the Cam aro o r at t he Hyatt at that time

. Officer Bourgeois obtained s ear ch w arrant s for the cell phone
that ran g in the Camar o and the cell phone in Jane ’ s possession when they found
her

. He testified that he had bee n co mmunicating with Jane through o n e of the cell

p ho nes t o arrange the d a te. Baham was arrested the day they found Jane

.

7 T h e conversation between Office r Bo u r g eois a nd “ Alaina ” w as recorded and played for the jury

.12

Officer Bou r g eois d id n ot know who posted the ad he answered , how long it was posted, who took the p hotos, how old the photos we re , or from where the ad was posted

. H e d id not know who was texting h im after the initial voice call.
After the police interv iew ed Jane , she was taken to Texas Children ’ s
Hos pital f or a phys ical examination.
E. Officer Ryan Bearde n HPD Officer Rya n Bearden works in the Financial C rimes Divisi o n
. In 2018, he w as a pa trol officer. He received a “ wagon call ” on November 7, 2 0 18 a t
11 :08 p.m

. , which is typically when an individ ual is in cu stody and ne eds to be

t aken to jail. He was told to report to a Hyatt Regency H otel at 425 North Sam
Housto n Parkway. The of ficers were int e rested in a black Chevrolet Camaro,
which Officer Bearden spotted w hen he arr ived at the hotel

. He saw officers interacting with the pe ople in the Camar o when he approa c hed. Officer Bearden
found Baham , Calloway , and one fem a le in the ca r
. 8 As Baham, the driver , got o ut
of the c ar, a phone fell f

rom his lap. O fficer Bea rden put Ba ham in the back of h is

p atrol car and the Camaro w as released to Call oway.
Jane was taken to Texas Children ’ s Ho s p ital

.

8 Officer Bearden d id not recall the name o f the fe ma le passen ger or what happen ed to her when Baham was taken int o custody

.13

F. Mercedes Collins
Mercedes C o l lins is a nurs e in the Texas Chil dren ’ s Hospital emergency
room. S he is a S AN E nurse, or a “ sexual assault nurse exam i n er. ” She testified
that sh e examined Jane on N o vember 8, 201 8

. J a ne , who was sixteen d uring the

exa mination , t old Collins sh e w a s first se xually assaulted about seven week s before arrivi ng a t the h ospital. Jane told her s h e was sexually assaulted mul tiple
times during that period , the last tim e being the day before her exami nation

. Acco r ding to her medical hist ory, Jane tol d Collins “ she ra n away seven

w eeks ago with a man she met o n an app
. ” The ap p was called SKOUT

. “ He said
if I did e verything he wanted, I would get everything I want. W h en I first got there, it was cool ; but the n after a few d ays, he said he was going t o p imp me out.
A t f irst it w a s fine, but then I wanted to leave b ecause he wa s takin g all the money that I was makin g. ”
Jane told Collins the man was “ Cliff or d Milton. ” Jane told her t he last time he pi mp ed her out was that day. Jane estimated to Colli n s that she had s ex with

s ixty to eig hty people when she was with M i lton but then revised her estimate to

“ probably below 6 0

. ” A l l b ut two or three of the men wore condoms and for t hose
who did not , she “ took the Plan B after. ” T h e p o lice found Jan e duri n g an undercover operation after Jane was t aken to a hotel for a date . Th ere, Jane14

knocked on the h o tel r oom door . After she entered the room and spo ke with the man inside, “ the cops came in. I told t hem to take me. I just wanted to go. ”
Collins testif

i ed that the i n f

o rmation Jane provided was consistent with
traffick ing. Jane m a nifested no physical injuries during the ex a m , al though she complained of lower abdomin al pain , and she test ed positiv e for chlamy dia.
Collins was asked abo ut Jane ’ s m edical re c o rds with respect to her mental
health and emotional be havi oral history , w hich Collins reviewed but did not

prepare
. T he record s state, “ Patient i s a freque nt run away, and this is the second

t ime she has been a victim of se x trafficki ng. ” “ P atient state d that she r an a w a y because her paren ts sometimes yell at her and that her parents do no t give her the
attentio n that she wan ts. ” The rec ords f urther state that “ Patient r e p orted that on the third day with [Milt on] , [Milton] told pa tient he was going to p i mp me o ut.
Patie nt s aid that she was willing to try it. ” The r ecords continue: “ Patient reporte d that after a while she realized that all the money I ’ m making , he would take. ” S h e also said Milto n was “ to o aggressive. ” She explained tha t “ one tim e he w as going

to hit m e with a cord. He wan t ed to but I think he r e alized I was 16, so he didn ’ t. ”

“ Patien t stated that she told [Milton] that she want ed to go home, but [Milton]
would not l e t her leave. ”15

G. Lisa Holcomb
Lisa H olcomb was a for ensic interviewer a t the Childre n’s Assessment
Center i n 2018

. 9 Fore nsic interviewers gather information from chil d ren “ where
there ’ s been an allegation of sexual abu s e or a wi tness to a violent crime [ .] ”
H o lcomb had a forens i c interview with sixt een
- year
- old J ane on Nove m ber 14,
201 8. According to Holcomb, J a ne was very detailed d uring her in terview i n describing what happened to her. She gave detail s including locations, times,
identi t ies, people i nvolved , and was “ very informat ive

. ” She described multi pl e

sex acts

. Jane gave fort y
- fiv e minutes of narration during th e forensic interview
and the n Holcomb went back and cl arified a few things

. When she aske d follow

up questions, J ane gave consiste nt details. Jane was very matter

- of

- fact during the
int e rview. The en t ire interv i e w la sted two hours and seven minutes.
Holc o mb testified that “ g rooming ” be haviors with respect to trafficki ng victims occur when victims cannot make communication w it h outside pe ople. The pim ps get the victim s involved with drugs and other c rimes to control them.
H. Nat han Gates
Nathan G a tes is an investigator and foren sic e xaminer w i t h the Harris County D istrict Attorne y ’s office. Gates uses Cel l eb ri te, a cell phone data

9 The C hildren ’ s Assessment Center is a ch ild ad vocacy center t ha t se rve s ch ildren who are victims of se xual abuse and sex trafficking and their families

.16

extraction tool used b y state, local, and federal gover nment and law e n forcement agenci es , to extract and report information that is stored in cell phones and computers

. Among other things , he performed a data extr ac tion in this case involving
Jane ’ s test messages with Officer Bourgeois , whe n they arranged their “ date. ”
G a tes ’ dat a extrac tions also reflect ed text exchanges from other phones , includ ing one belongi ng to Milton, to and about Jane

. I. Jane
Jane was nineteen when s he testified at trial

. She was “ nervous and scared ”
becau s e “ this is the first tim e . . . after th r e e and a hal f ye ars that I

– I talk about
this. ” Sh e live s w ith he r boyfriend a nd has two jobs , one from 9 :0 0 a.m. t o 4 :00 p.m. and one from 4 :00 p.m. to midnight. According to Jane, i n Septemb e r 2018, she w as fifteen

. 10 She wa s a high
school soph omor e and was doing w ell in school

. She liv ed with her pare nts and
her younger brother

. Things were n ot good at home . Her parents were always arguing and did not pay a ttention t o her or her little brother. Jane ran a way because of her pare nts ’ marital prob l ems. She t estif ied, “ [O]n ce I started to notice
that stuff in the hou s e wasn ’ t how it used to be, I didn ’ t want to b e there. ”

10 Jane testified that s he left h o me periodica l ly against her par ents ’ wishes but typ i cally returned

. J ane first ran away at age eleven . O nce, sh e was gone a week.17

She met Milton, who she knew as Rico, on SKOUT, an adult dating app
. On SK O UT, she cre ated a fake e mail and a fake name and s a id she w a s ninet ee n
. She had not used SKOUT befo r e. SKOUT is “ sup posed to b e a dating app, but
that ’ s where everybo d y gets on ther e and it ’ s a lo t of

— it ’ s basically like I nstagram,
but it ’ s more like a dult

- ish. You k now , it ’ s only for 18

- year
- olds, but I was 15

. ”
Ja ne indicat ed that she wa s nineteen on her profile on the app

. She began to text with Milton. According to Jane, t hey texted fo r less than a day before she deci d e d to leave home. She did not know at first wh o m she was

comm u n icating with on SKOUT. S h e did not know h is name, just a nickname , which was “ Rico. ” She lat er found out his real name was C li fford M ilton. W hen they were c ommunicating on the SKOUT a p p, “ At fir st h e just hit me up. I t was , like, Hey. And t hen it w ent, like pretty s t raightforward. He just said, ‘ We can
make mone y. I can give you money. We ca n do this. We can do that. You can do anything you want. I ’ ll feed you. I ’ ll get you th e clothes you need. I ’ ll g et your nails do ne, anything yo u n eed. ’ ” Jane testified, “ I was promised m oney, that I was going to get my n ails done, g et clothes, all the stuff that a girl wants. ” S he
underst ood that he w as offering a “ [a] job. I was 15. That ’ s the only wa y I
th ought of it. I thought it was just going to be a job

. ”18

Sh e l eft a letter for her parent s when she ran away
. She told her parents in
the letter th at if she got a j o b , she would send them money. Jane left home six days befo re her sixteent h bir thd ay. Jane did not recall where Milton pic ked her up , but it was not a t home or
school because she did not want him t o know where she lived

. “ He came to pic k

me up [,] and once he p ick ed me up he took me to go ge t foo d and then he went to
g o get som e wee d for me to smoke. ” Milton was wi th h is brother, Ronald Calloway , who t hey call ed “ Ro

. ” She took a duff l e bag of cl othes, a b ackpack, a nd

a perso n al bag when Milton and Calloway picked her up
. She packed hal f of her clothes, because she figu red she would be gone for a while. The first few days she was with Milton and R o, Milton “ broug ht me food and he brought m e w eed

. ” In thos e early day s , “ there wasn ’ t nothing go in g on. It was just

— it w as j ust promises. J ust promises, pro mises. If I ’ m hungry, I coul d tell him and he would get me something to eat. If I need somet h i ng, just to le t h im
k now and h e would giv e it to me. L i ke, I just thought I was being spoiled. ”
In addi tion to getting her food , they were just riding around

. At firs t , she thought Rico was “ cool. ” She testified, “ He was being nice. He was buying m e food, m ake sure I ate. A s king me eve ry two hours was I hung ry and

— like , that ’ s how he w a s at firs t. ” But a few days later, it was understood “ tha t he wanted me to19

do stuff with other men for mon ey
. So he would give me the phone and tell me to

text all t hese j ohns wh ile he was t h e r e [

. ] ”
Then Milton assa ulted Jane. “ [H] e just ca me in the ro om and he asked

w here the cond oms were. ” He went to get a cond om a n d “ he had sex with me

. . . ”
Jane testified Milton put his penis inside her vagina w hile she “ w as l a y ing down on
the b ed turned around

. ” “ [A]ft e r a w h il e he j ust stopped. I didn ’ t ev e n tur n around

. He jus t went to the bathroom, and I just laid there. ” Jane testified, “ [O ] nce he started putting up hi s money an d he realiz ed that I
need ed to make s o m e money. Tha t ’ s when everything changed

. ” He st arted

“ telling me to ta ke sexy pictures, making sure I got r e vealin g clothes, making sure I showed my body more often, and textin g guys. ” At fi rst when h e told her she was going t o have to make money, she t hought it was a jo b. But then she
understood she could no t get a job at her age, “ so he just t o ld me t o take sexy pictures. ” “ [O ]nce I figured out that I was taking pictures like t hat, I did n ’ t like it ; but I didn ’ t want to argue with him bec ause I did n ’ t know if he would do

so mething to me. ” J ane had to take “ pictures of my brea s ts, pi c t ures of my vagina,

p ictures of my arch. I would have to sen d it to him or send them t o t he johns, so
tha t way they could c ame to me and get what they wanted. ”
Some t i m e s she took th e pho tos herself and some tim es Milton and Calloway

too k them. That b e g an in the first hotel. She does not know how long she stayed20

at that hotel. She understood the r eason for t he photos once people started coming
to the hotel. “ [ J ] ohns w o uld come after I h ad the pictures taken

. ” According to Jane, Milt o n or she would tell the johns to come to t h e hot el. Milton gav e Jane a pho ne to use but she c ould only use it when he was around , or if he was not around, he w ould c heck the phone later

. She cou ld have contac ted her fami ly “ but
I did not want to put my p a rents in that situatio n. Once that I re a l ize d that everythi ng wasn ’ t how it was supposed t o be, I want ed to, like , keep my famil y out

o f it as much as I could because I knew they were a l r eady st ressed and upset and all types of hurt when I left. S o who

– who was I to call and be, like, hey, Dad , ca n
you com e and pick me up at this hote l? And I ’ m just hal f naked. I didn ’ t want my
dad to look at me like that. I didn ’ t w ant h i m to be d i s a ppointe d in me

. ”
Jane testified that s ome of the men who ca me to the ho t e l room were

“ aggressiv e. ” S o me of them “ j ust treated me lik e I w asn ’ t nothing. ” S he asked

on e john for help “ because I didn ’ t want to be there no more. I wanted to go
home. ” Be f

o re the men arr ived at the hotel room , “ it was already , lik e , planned.
S o bef ore they would come in the hotel ro om , it ’ s like they already knew wh at they

cam e there to do. And what I mean by that is, like, they knew that th ey were coming in there t o hav e pay to have se x with me. ” At the first h o t el, Jane testified
she would have sex with one to three men if she was n ot making much money that day b ut if she was making money, it was seven or eight men in one day.21

Milton would tel l Jane how much mo ney he t o ld the johns t o pay , “ s o I would be expecting that amoun t of money fo r that amoun t of time. ” T he j ohns

w ould text after see ing an ad p osted of J ane
. T hey would get the phone number
f rom the ad and then text the phone and dis c l o se how much t i me they wan t e d to

s p end wit h Jane and she would tell them the price

. “ [ T ] he more t ime it was, th e

more m o ney it w as; I wo uld hav e to be there for t hat amount of time or until they ejaculated. ” Sh e alwa ys gave the money th e johns paid to Milton. Milton paid for
the h otel rooms.
A t the se cond hotel, Jane started to se e Milt on ’ s and Calloway ’ s fr i ends and
rel atives

. She continued to have sex d a t es with strangers at that seco nd hotel.
Milt on either used new photos that he or Jane t o ok , or he used photos a lready on

t he website and the men would text or call and a sk about Jane ’ s rates and

a vailability. W h en t he men t ex t ed , Milton woul d tell Jane how to respond or he

wou l d respond. W h en the johns called, Milton gave her the phon e so they could
he ar her voice.
Acc o r ding to Jane, “ Once we agreed on a price and a time, the address was

s en t and th ey wou l d be on the way to the h otel, depending how far they are. And
then o n ce they got closer, we would text message, say ing: Let me k n ow when

you ’ re five minutes away so I can get ready. But, in reality, when they were five
minutes awa y, [Mi lton] woul d leav e the room and he would be outside. He would22

leave the room, but he w oul d know and see when the person wo uld go i n t he

room. ”
Jan e would do whatever sort of se x acts t h e men wanted. “ They would ask
for oral. T hey wanted to do anal. A t time s, the y didn ’ t w a nt to use a condom. They just wanted to cum in me; but I can ’ t let t he m do none of that because if I do , it w a s s upp osed to b e mo re money if they wanted to do tha t

. ” “ When they h ad sex with me, they would always use a co ndom. Th at ’ s how the r ule was. L i ke, you
can p a y for the time, pay what you w ant, but then y o u have to use a condom. And if they didn ’ t, th ey woul d ha ve to pay more. ”
Jane testified that she d i d not think abo ut c alling the police when she had the phone. “ I did thi nk ab out calling my pa rents b ecause that ’ s the only people I
wanted to go back h ome to. Everything that was happening to me, I realiz ed t hat it

wasn ’ t worth it, th a t I should have j u s t stayed home, that I woul d h ave to be in that position where I was d eba ting if I should c all my pa r ents for help. I knew that they would always help m e, but I did n ’ t want them to be hurt . . . . I wanted t hem to be
safe. ” She said she w anted to go home b ut “ I just didn ’ t know how to do it. ”
At th e second ho tel, Jane t estified she had sex w i th up to seven people a day. She gave all th e money she made to Milton. “ [H ]e told me that if I was hungry or
if I needed somet h i ng to let h im know. He wo uld bu y me food at fi r s t. When I was making the money , he woul d buy me food. He would ask me what I w anted to23

eat and this and that and I woul d tell him; but once I stopped making money, he
did n ’ t want to give me nothing no mo r e
. ”
Jane testified that s he us e d the name “ Alai na
. ” T he ads i ndicate d she was

n ineteen , but s he was actually fifteen or sixteen

. On her s ixteenth birthday on Sept e m ber 25, 2018, she was still with Milton. She was “ still being wit h j ohns, with guy s who were p aying me to have sex. I k n ew it was m y bir thday; but considering the situation t hat I was in, I didn ’ t feel like nobody c ared. I didn ’ t
want to celebr ate my birthd a y with them eit her. I kept it to myself ju s t the whole day o f just thinking a bout what I could have done o n my bir t h day. ”
Milto n dro ve Jane to a third h otel. “ At that point, he liked that I was ma kin g
money so he wanted me to recruit other gi rls. ” “ I had to ge t other girls

— get other girls to do the same thing that I was doing. ” She reached out to other gi rl s becaus e
M ilton thought gi rls w ould be more comfortable if she contacted them th an if he
did

. He wanted additional girls invo lved b ecause “ [h]e wanted to make more

money. ” Acco rding to Jane, s he wou ld “ get on the SKOUT app, the one I w as [ in itially ] on , and loo k for girls and pro mise them the things that he promised me

. . . . Telling them if they come with me, they wo uld get th eir nails done and they
can hav e as much money as they want for food and c lot hes

. ” “ All the girls were

o lder, so th ey told me no. B u t one girl told me yes[.] ”24

T he girl met with Jane in A l ief

. Jane w as with Milton. The gir l ( “Mar cy ”) 11 brought a duffel ba g with her clothes and her make

- up
. Jane testified that when
she first saw Marc y, “ I looke d at her SKOUT picture. S h e looked you n g ; but when
I look ed at her, I knew she was a ki d. Like, everything I saw was telling me that
she was a kid. A n d I could tell that s he was younger than me. ” Jane thought Marcy w as fourteen or fifteen

. Mil ton drov e Jane and Marcy to a ho tel and paid fo r the room

. This w as at
the end of October, about a month and a half after J ane lef t home. “ He t o ld me to take pictures, dress her up. ” The photos Milton wa n t ed were of the girls ’ b odi es.
J ane g ave Marcy clothes , took photos of Marcy with Milton ’ s pho n e , gav e her
condom s, and posted the ad online per Milton ’ s instru ctions

. The ad was posted on
Novem b er 1, 2018.
Jane testified she “ lo oked at [ Marcy ] and I seen tha t

— I could tell that she was young. I just wanted to get her out of there ” because “ I w as g oin g through it
and I didn ’ t like the situation I was going t h rough. I did n ’ t like nothing. I didn ’ t

wan t t o put her in that positi on where she knew s he wanted t o go home that day or the next day or what ever the case was. I just wanted her to be saf e. I r eally wanted her to go home. ”

11 To p rotect her identity, we use “ Ma rcy ” as a p seudonym f or this wit nes s.25

Jane explained that if a girl does not make money , “ the n the y just dr op the girl off anywhere. It does n ’ t matter i f they ’ re from there or not. S o the only thing
I could do was to get [Marcy] so m e m oney. The only w ay t o get her money was for her to be w ith somebody e lse in a s exua l w ay ; and once I got her the money, I
had to spl it it between her and Ronal d , ” Milton ’ s brother.
J ane testified o ne man respo nded to the ad she posted with Marcy ’ s p hoto.
Jane and the ma n communicat ed th rough t exts. According to Jane, t he man who
came to the hotel for Marcy looked like he was in his 30s or 40s. He went into the
hotel room with M arcy while Jane waited outside t he room

. Marcy and th e man had sex and money w as ex change d

. W hen it was over, Marcy came ou t. She had $ 70 from the john

. Jane gave Marcy half the mone y and the o ther half to Calloway

. Calloway a nd a girl Jane had ne ver se en before picked up Jane a nd Marcy in the morning and dropped Marcy of f at schoo l

. Jan e d i d not see Marcy after tha t

. Jane testified that it was the only ti me Marcy wo rked f or Milton. Calloway too k
Jane and t he other girl to another hotel.
Jane testified that b y that time, “ I was dead inside. L i ke, I had so much weed and pi lls in my sy st e m , I fel t lik e I was dead. L i ke, at that point, I was just
letti ng t h e m do whatever they want to me. I just fe lt l ike I wasn ’ t human. I just
felt like tr ash. ” She stayed at that ho tel just one day.26

After that, Ja ne testified they went t o a Motel 6 n e arby. She wa s th ere wi th Milton, Callo way , Ba ham , and some one she did not know. Milton paid for the

r oom
. Jane estimated that she had twenty or twenty

- five dates a t the Motel 6 , all

sex acts in exchange for money, which sh e gave to M ilt on. Asked to d e f ine “ s ex

a c t s , ” s he said, “ They would tell me what they want. . . . [T]hey would tel l me the positio n they wanted me to be in so I would get in that po sition and I woul d give
them the condom. ” S he testifie d, “ It go t to a point that I didn ’ t want to do i t , so I

star t ed blo cking their num bers

. ” Milton did not know she was doing that. According to Jane, s he did not reach out t o he r parents when she had the phone because she “

just gave up. ” “ I r eall y did give up on myself. I ju st felt lik e
my pa rents w o u ld have b een be tt er off wi t hout me

. . . . I w anted to go home but I
didn ’ t

— I didn ’ t want them to s e e me like that. I didn ’ t want t o be a disappointment

. ” Calloway an d Milton to ok photos of Jane and a girl na med Makia “ bec ause they were postin g us t o g e ther again becaus e they were try ing to m ake money since money was getting l o w for them. ” The polic e showed up at the hot el roo m they

wer e in . Milton told Ja ne to “ put the phone in the water , flush the weed. ” Jane did not let the police know she was t h e r e because she was scared that Milton would do
someth ing t o her. After the police left, everyone “ scattered. ” Jane , who used a
ride

- share service, went to a fast

- f ood restaur ant and Makia p i cked her up there.27

Jane test ified she went to Dallas with Mi lt o n , Calloway , and Baham because
Mi lton an d the others thought there were too many police looking for them in
Hous t o n
. In Da llas , they checked i nto an other Motel 6. She did not have any dat es with men t here , but Milton posted an ad o n November 7, 2018. T h e y sta y e d in
Dallas only one night.
Mean while , Milton became mad because Jane did not want to m ake any

money. “ I didn ’ t want to do anything anymore. I t w as just so drugged . But . . .
th e more sober I got, I didn ’ t w ant t o be t here. . . . He want ed t o give me p il ls to stay up and I den ied him and he got mad at that. . . . I did e nd up falling a s l eep
. And he was get ting mad that I was going to sleep and no t making him money

. ”
Milto n passed Jane off to Baham in Da llas because Milton “ [knew] I was n ’ t g oing to ge t no m oney. S o [Baham] didn ’ t have a girl so [Baham] was just, lik e, I ’ m
go i ng to keep h e r. Let me get money off of her. ” When Jane returned to Houston , Bah am too k her to an In Town S uites

. S he work e d for Baham only one day before
she was re c o vered

. A t all other times , she w orked for Milton.
Jane testified that w h en she go t back to Hou ston , she “ wanted to go home. I
was hu rt ing. My body was hurting. I was i n the b a tht u b , and there was blood. I just wanted to go home. L i ke , my body was s o d rained. I was hungry

. I was tired. I just wanted to go home. ” S he had a date a t the InTown Suites where the j ohn

was hurting her. “ I told him tha t he was hurting m e and he wouldn ’ t stop. And28

then after awhile, it was li ke

— while he was h urting me , I started ble eding while he was doing it. And I told him I was b leeding, and he di d n ’ t stop. A n d so he came,
and that w a s that. ”
H er next and fina l date was at a Hy a t t Regency hotel with a john named

“ Josh

. ” She went to the john ’ s room and when s he w a s about to u ndress, he opened to door t o the adj oining room and law enforcement aut horities entered

. W h en Jane sa w the police , she “ felt happy. I to ld them to take me. I was just l ike,
take me. T a ke me now. ” The police s aw she was hungry and sleepy a n d one of the agents went to get her food. Th e y took her to the hospital, where her pa rents
and aunt wer e w a iting f

or h e r. S he test ifie d, “ I felt happy . I was happy t o go back home. I apol ogized to my da d and my mom. ”
J. M arcy M arc y was seventeen when s he t estified. In October 2018, she was thirteen years old and liv ed with her m o ther

. Tha t month , sh e ran away b ecause she me t
Jane on an app cal led “ Meetm e , ” an adult dating site. One day, Jane asked her i f
she would like to mee t and Marcy said yes. Ma rc y did not know what they w ould
be doin g but she a ss u m ed they wer e “ just going to hang out. ” M arcy put on her

“ Meetme ” pr ofile that she was eighteen years old. Marcy, who was supposed to b e spending H alloween night at a friend ’ s house , snuck out of the h o u se when the friend ’ s parent s wer e as leep. Marcy told29

the frie nd she was going to a n other f riend ’ s house

. Instead, Jane a nd Milton picked Marcy up
. Marcy , who did not g o by her real name with Jane and Milton , 12
had not met Milto n before

. M ar cy e x pec t ed t o be gone “ maybe a day. Yeah, a day. ” She was “ nervous ” bec a use she “ was n ’ t expecting [ Milton ] to be with [ Jane ]

. W h en I got in the car, she t o l d me it was jus t a friend of hers. ” Mi lton and
Jane took her to a n InTo wn S ui tes hotel i n Greenspoint

. Wh e n they got to th e hotel, Milton came into the room but then he left and she did not see him after that. Marcy testified that she believe d Milton paid for the room

. A fter Milton left, Jane had Ma r c y pose f or ph otos in lingerie that Jane gave her. Marc y d i d n ot know why she was d oing it , but she wa s nervous
. She test ified
that a fter Jane took the ph otos, she up loaded them to a sex w ebsite. The photos

wer e posted on N o vember 1, 2018. A fter the ad w a s poste d, a man who appeared
to be in his late 30s c ame t o the door. Marcy said, “ He was trying to pay for sex, ”
h av ing s een the ad that was posted of the two gir ls. W h en he came to the hotel,
Jane left the r oom and Marc y w as a lo ne with the man. “ We had se x, an d he gave me money after. ” According to M ar cy, J ane “ told me the prices, l i ke what to charge. He kn ew tha t he ha d to pay. ”

12 Marcy testified she had not us e d her real name because , “ I was really ju st scare d a nd nervou s . I didn’t really k now what ’ s what would happen. I didn ’ t know, like, th e outcome o r an yth ing. ”30

A fter the man paid Marcy , the m an left , an d Jane returned to the roo m
. Marcy gave the money t o Jan e
. Early in the morning , Jane an d Mar cy were picked up by Callowa y
. Ja ne w a s dropped off at another ho tel and Marcy was dropped off by he r s chool. Marcy did not see Milton a gain unt il she testified at trial

. K. D r. N neka Nnado zie
Dr. Nn eka Nnadozie is a sta ff psych ol ogist at the C hildren ’ s A ssessment
C enter

. S h e conduct s ps ycho l ogica l evaluations and provide s individual, family, and gro up therapy to children who are victims of s e x ual abus e and sex trafficking.
S h e testified that she has spoken with ap proximately 150 children who are victims
of sexual abuse . Among othe r th in gs , she provides psych otherapy to sex trafficking victims. S h e d i d not m e et with Jane bu t watched he r testimony in court.
Dr. Nnadozie ’ s knowledge of Jane i s based on Jane ’ s testimony during trial and the
C hildren ’ s A ssessment C enter vi deo of Jane ’ s fo rens i c interview that Dr. N nadozie

wat ched

. Dr. Nnadozie te stified tha t c hildren wh o are “ m ore vulnerable ” are likely targeted for sex trafficking. Those may be chi ldren with mental heal th issues , substance ab use issues, neglectful h omes, l ow IQ s , o r a hist o ry of sexual , physical ,

or e motion al abuse. She said tr aff ickers a re typically ma le, older than the victim.
The trafficker is usually in control, “ has all the po wer and l eads to victim to be dependent upon th em, de p endent for ba sic needs such as f oo d, w a ter, sl eeping. ”31

Dr. Nnadozie des cribed diff e rent ty pes of relati ons hip s pimps have with the
traffic ked victims. She said in the beginning of Jan e ’ s relationshi p with Mi lton,
ther e was “ grooming, ” which is “ what t h e abuser or the pimp does t o ge t th e vi c tim ready t o be abused or exploite d

. ” She said there are stages to grooming: ta rgetin g the victim, looking for vulnerable girls who want attention a nd to b e loved; g aining
the victim ’ s tru st; and mee t ing the victi m ’ s need s

— for food and shelter an d fo r lu x uries such as getti ng her h a i r and nails done . After meeting the need, the vict im
is isolat ed and her line of communication with friends and family is c ut off. After
isol ati on, the victim is ex ploited.
Dr. Nnadozie heard testimony about Milton t ry ing t o gain Ja ne ’ s trust a nd isolating her. S h e testifi ed that Jane “ didn ’ t have a h ome. She didn ’ t have a way of communicating w ith anyo n e. ” She also heard testi mony abou t Jane ’ s exploitati o n through the pos ting of ads.
Dr. Nnadozie test ified tha t so me t i m es traff icking victims stay with a pimp
even if the re are opportunities to e scap e because t hey don ’ t believe they can leave

. They believe t hey are bei ng watched and the vic tim wan ts to protect he r f a mily from the pimp

. The t estimony Dr. Nn adozie w at c he d led her to believe that Jane
did not leave because she feared for the safety of her fami ly. Dr. Nnadozie
testifi ed that Jane ’ s t estimon y that s he was helpless and coul d not remove hers elf
from the situation was consistent with a vi ctim of sex tr a ff ic ki ng
. Dr. Nnadozie32

said it is not easy fo r a sex traffi cking victim to run away from the traff icker.

“ Sometimes they don ’ t h a ve the resources . S o metimes they do n ’ t know where to go. S o metimes they just don ’ t have the phys ical energy. If you ’ r e no t ea ting , you’re not sleeping and you ’ re high, wh at energy do you have to walk out of th e door or e ven think clearly about who to c a ll or where to go? ”
She testified that s ometimes sex traffickin g victims take part in victimi zing
others. Th is can happen be ca use t hey are “ just doing what they ’ re told

. They
haven’t eate n in days. They hav en ’ t had any fluids. They have n ’ t slept. They ’ ve
p robably been getting high and taking d rugs. S o they ’ re just doin g what they ’ re told. ” Other time s, the y recruit new v ic ti ms “ to take some of the pressure and
abus e off of themselves. ”
Verdic t and P u ni sh me n t
N o defense witnesses were c alled during the guilt

- innocence phase o f trial.
T he jury found Milton guilty of tw o counts of tra ffi cking of a child . Th e trial court

s en te nce d him to twenty

- eight years ’ conf inement for each conviction and ordered the sentences to run concurrently

. Th is a ppeal en su ed.
Discussion
Milton raises th ree issues on appeal. In his first i ssue , Milton requests w e

m odify his j udgment s o f convi ct io n ( a ) t o reflect a finding on the enhancement33

parag raph s of “ N/ A ” ins tead of “ pleaded true ” and “ found true, ” and ( b) to state
tha t t he sentences are to run concurrently

. I n his second and third is sues, he argues the evi den ce is legal ly insuff icient t o pr ove he committed the offense of

comp elling prostitution and trafficking a person based on co mpelling prostitution
in Cause Nu mber 1612516 because he did not cause Jane to commit prostitution , and that the t rial court ab u sed it s discret ion in a llowing t he a dm i s s ion of

extraneous

- offense testimony concerning Marcy

. Le gal Su fficiency Challenge
A. S tandard of Review a nd A pplicable Law
1. Le gal Sufficiency
O ur lega l sufficiency a nalysis has two steps . First, we cons ider whether

‘ “ t he essentia l elemen ts of the c ri m e ’ f o r which the prosecution m ust p rovide
sufficient e v i dence ” support a conviction. Clinton v. State , 354 S.W.3d 795, 799 (Tex. Crim. App. 2011) (citing Geick v. State , 349 S.W.3d 542, 545 (Tex. Crim. App. 2011) ). Second , w e examin e the ev idence in t he re c o r d “in the light most
favorable to [ th e ] verdict t o determin e w h e ther any r ational trier o f fact could have
found the essenti al e lements of the crime beyond a re a so n a ble doub t

. ” Id. The legal sufficienc y review “ turns on the mean ing of t he statut e un der

w h ich the defendant has been pro secuted. ” Liverman v
. State , 470 S.W.3d 831,
83 6 (Tex. Cri m. App. 2015)

. The determination o f whether certain con duct34

actually con s t itute s an offense under a statute , like al l statu t ory constructio n questions, is a q ue sti o n of law, w hich we review de novo

. Id.
In constr uing a statute, “we give effect to the plain meaning of its language,
unless the statute is ambiguous 13 or the p l a in meaning w ould le ad to absurd res ults that the legi s latu re c ould no t have possibly i nt en ded

. ” Id. (c i t ing Yazdchi v. State , 428 S.W.3d 831, 837

– 38 (Tex. Crim. App. 2014) ) (footnot e a dded)

. In
ascertai ning the statute ’s plain meaning, we consider the rules of grammar an d usage and pres ume every word in t he statute has a p u rpos e and that “ each w o rd,
cla us e, a nd sentence s h o uld be given effect if reasonably poss ible. ” I d. (citing Yazdchi , 428 S.W.3d at 837 )

. If a fter using the tools of cons t ructi o n, we determine
the st atute ’s language is ambiguous, we m ay look to extrate x tual factors to
determi n e the st at ut e ’s meaning. I d. (citing Yazdchi , 428 S.W.3d at 83 8 )

. Extratextual factors include but are not limited to “ (1) the object sought to be attained, (2) the circumstanc es under which t he statute was enac ted, (3) the legis l ativ e history, (4) com m on law or f or mer statutory p rovisions, including laws
on the same or similar subjects, (5) the consequences of a particular co nstruction, (6) a dministrative construction of the st atute, and (7) t he title (caption), preamble,

13 A s tatute is ambi guo us “ when the statutory language may be understood by reasona b ly well

- informed pers ons in two or more different s en ses [

. ] ” Yazdchi v
. State , 428 S.W .3 d 831, 83 8 (Tex. Crim. A pp. 2014)

.35

an d eme r genc y provision

. ” Cha s e v. St at e , 4 48 S.W.3d 6 , 1 1 (Tex. Crim. App. 2014) )

. After engag ing in a stat ut or y review, w e apply the legal sufficiency standard
set out in Jackson v. Virginia , 443 U.S. 307 (1979) to determ i n e whether the
evide nce is suffici e nt to su pport each element of a crim in al offense for which the
State bears the burden to prov e beyond a re aso nable doubt. See Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). “[W]e v iew the evidence in th e light mos t fav orable to the verdict and dete rmine wheth er any r ational t ri er of fact
could have found the essential elements of the offense bey ond a reasonable doubt.”
Matlock v. S t

ate , 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) ( c i ting Jackson , 443 U.S. at 319; Br oo ks , 323 S. W.3d at 895). We consid er both dir ect and
circumsta nt ia l evidence in our analysis. Laster v. State , 275 S. W.3d 512, 517

– 18 (T ex. Crim. App. 2009) (citing Burden v. State , 55 S.W.3d 608, 613 (Tex. Crim. App

. 2001)) ; see Kuciemba v. State , 310 S.W.3d 460, 462 (Tex. Crim. App. 20 1 0 ) (“Circumstantia l evi dence i s as prob ative a s direct evidence in es tablishing the guilt of an actor” and “the standard of review on appeal is the same for both d irect

an d circumstantial evidence cases.”) (quoting Guevara v. State , 152 S.W.3d 45, 49 (Tex

. Crim. App. 2004))

. While w e d ef

er to the fact finder ’ s credib i lity an d weight de terminations , t he legal suff icien cy standard allows the reviewing court to “determine whether the36

necessary inferences are reasonable based upon the combined and cumulative force
of all the evid e nce when vi ew ed in the light most favorable to the verdict. ” Murray v. State , 457 S.W.3d 446, 44 8 (Tex. Crim. App. 2015) (quoting Cla y ton v.
State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) )

. We must presume the fact
fin d er resolved any eviden tiary con f licts in f a vo r of the verdict and we defer to t hat

r esolution

. Murray , 457 S.W.3d at 448

- 49 ; se e also Morgan v. State , 501 S.W.3d 84, 89 (Tex. Cri m. App. 2016) ( obse rving that revie win g court ’ s role on appeal “is

restr i cted to guarding against the r are o c currence wh en a fact finder does not act
rationa lly”) (quoting Isassi v. State , 330 S .W.3d 633, 638 (Tex. Crim. App. 2010)).
If our review reveals the evidence is leg ally insufficien t, we must reverse the appellant ’ s co n viction

. Costilla v. State , 65 0 S

. W.3d 201, 2 12 ( T e x. App.

— Houston [1st Dist.] 2021, no p et.). But if there are two permi ssible view s of the evidence, “the fact finder ’ s choice bet ween them can not be clearly erron eou s.”
Evans v. State , 202 S.W.3d 158 , 163 (T ex. Crim. App. 2006) (quoting Anderson v. C ity of Besse mer , 470 U.S

. 564, 574 (1985) )

. 2
. Trafficking of a Child
Milton was con victed in Cause Number 1 612515 of c ompelling prost itution
and t raffic king of a child by comp elling prostitution

. The indictment states that Milton, on or abo u t Novembe r 3 , 2018, “ did then and th ere u nla wfully, knowingly transport [Jane] , a person younger than 18 years of ag e ” a nd “ did cause [ Jane] to37

beco me the vict im of conduct prohibited by Section 43.05 of the Te xas Pena l
Code. ”
Sect i on 43 .05 of the Texas Pe nal C od e is the “ C ompelling P rost i tut ion ”

s tatute. At the time of the alleged offense, S ubsec tion ( a)(2) of the sta tut e provided
tha t “ a per son c ommits an offense if th e perso n knowingly

. . . ca uses by a ny means a child younge r than 18 years to comm it prost itut io n, regardless of whe ther the actor knows the age of the ch i l d at the time of the offense. ” T EX

. P EN AL C ODE § 43.0 5 ( a) (2)

. Section 43 .02 (a) de fine s “ p rosti tuti on ” a s “ k nowingly offer [ing] or
agree [ing] to receive a fee from an other t o engage i n sexual c on du c t

. ” I d. § 43.02 (a)

. Section 20A.02 of the Texa s Penal Code is the “ Traffi c king of Persons ”

statute

. At the time of t he alleg e d of fe nse, S ubsection (a )( 7 )( H ) provide d that “ a person commits an offense if t he person knowingl y
. . . traffi c s a child a nd by any

means ca u ses the traffic ked child to eng age in , or become the victim of, conduct prohibi ted by

. . . Section 43.0 5 ( Compel ling Prosti tution) [

. ] ” See T EX

. P EN AL
C ODE § 20A.02 (a)( 7 )( H )

. To “ t raffic ” mean s to “ tra nsport, e ntice, recrui t, harbor,

pr ov ide, or otherwise obtain another person b y any means. ” Id. § 20A.01 (4)

. A nd

“ child ” means “ a person younger than 18 y ears of age. ” Id

. § 20A.01 ( 1 )

.38

B. A nalysis
Milton argues in his second is sue that the evidence is legally insufficient to

su sta in his co nv ic tion under Cause No. 1612516 for compelling prostitutio n and trafficking of a child for compelling prost itution

. Milton does not dispu te th e re is
le gally sufficient evidence that Jane performe d sexual a cts with men in exchange
for money. 14 In stead , he a rg ues the evidence is legally insuf ficient “ be c ause he did

not cause [J ane] to commit prostitu tion as required to prove [she] was th e vic tim of compell ing prostitution. ” 15 A ppellan t relies on Turley v. State , 597 S.W.3d 30 (Tex. App.

— Housto n [14 th D i st.] 2 02 0, pet. grant e d) to argue that because Jane
was a mi nor at the time of the o ffe nse , she c ould not have consent ed to se x as a

matt e r of law, and thus she could not have commit ted prostitution , an element of
the underlying offense.
I n Turle y , t he Fourt ee nt h Court of Appeals reversed the appellant ’ s conviction s of compelling prostitutio n of a child and trafficking a c h ild based on

co m pel li ng prostitution based on its holding that a chil d under the age of fourteen

c annot co nsent to sex as a ma tte r of law an d th e refore cannot commit pr ostitution ,

14 Indeed, there was s ig nificant te st imo ny fro m Jane describing he r multiple e ncounters with men, including the loca tion of the en cou nters , how the encounters were set up, the n umber an d nature of the en c o unters, wha t transpired during the e ncounters, and Jane ’ s receipt of mone y in exch an ge f or performi ng sex ual acts with men

. 15 Milton was also convicted in Cause Number 1 612515 of trafficking o f a child by causi ng Jane to become the victim of sexual ass a ult. Milton does not challeng e the legal sufficiency of his conviction in C ause Numb er 1 612515.39

an element of the underl y ing offe n ses . 597 S.W

. 3 d at 43

– 44, 46

. The appel l ant in
Turl ey was the f

ath er of a f

our
- year
- old girl . He p o sted a Craigslist ad captioned

“ Play with Daddy ’ s Little Girl. ” I d. at 36

. H e pr oposed a “ me et up ” with an
underc over police offi c er for a sexual encounter with the child pro vided the officer

was “ genero us
. ” Id. A f t er the un dercove r officer arrived at t he ap pe llant ’ s apartment and saw the sleeping child wearing only a p a jama t op , Tu rley was arrested

. Id. at 37. The j ur y c onvicted the app ellant of compel l ing prostitution of a child y ounger t han e ighteen and of tra f f ic kin g a child based on c om pellin g prostitution. Id. at 36.
O n app ea l, Tur ley ar gued that the St a t e ’ s e vidence w as i nsufficient to prove he compelled pr ostit ution of a child b e cause the complainant was younger than
fourteen and a s a matter o f law , the c omplainant co uld not consent to sex and commit prostitution. Id. He argued the State ’ s ev idence was i nsu fficient as t o t he
traf ficking charge because he did not cause the child to become the victim of

c ompelle d prostitution. Id

. Rely ing on In re B.W. , 313 S.W.3d 818 (Tex. 2010) , the Fourteenth Court of Appeals held that “a child under the age of fourtee n m a y

no t be c h a

rged wit h ” prostitution b ecause children under fourteen lack “the leg al capacity to consent, which is necessary to find that a p ers o n ‘ k nowingly agreed ’ to40

engage in sexual conduct for a fee. ” Tu rley , 597 S.W.3d at 43

– 44 (citing In re
B.W. , 3 1 3 S. W.3d a t 8 22, 824, 8 26 )

. 16 , 17 The court of appeal s thus concluded : Following the plain meaning of the compelling

- prostitution statute, which req uires a s a necessary element a showing th at another person

. . . was caused to commit prostitution, when th e other p er so n is a “child” and that child cannot com mit t he offense of prostitution, we conclude the defendant cannot be convicted for compelli ng p rostitu t i on. Id. at 36

– 37 ( footnotes omitted)

. 18

16 In In re B.W. , 313 S.W.3d 818, 824 (Tex. 2010) , the Supreme Court s tat ed, “ The Legislature has determined that c hildren thirteen an d y ounger cannot cons en t to sex. Thi s necessitate s th e holding that these children cann ot be tried f or prosti tu ti on. ” Th e d efendant in In re B

. W. was a thirteen

- year
- old child who offered to engage in oral sex w i t h an un der cover police office r for twenty dol lar s. I d. at 819. She original ly w as charged in c rimi nal court but when her age was dis cover ed , the cha rg e s wer e dismi sse d , and juvenile proceedi ngs were filed under the Family C o de. Id. The Supre me Court agr eed with B.W. that the Legi sla t u r e did not intend to apply the o ffense of prostit ution to c h ildren un der fou r teen “because children below t hat ag e ca nn ot legally c o nsent to sex
. ” Id. at 820.
17 T he Court o f Cr iminal Appeals has not ruled on th e issue of consent invo lving min ors in the co nte x t of c onvictions for compe l ling prostitutio n and trafficking a c h ild based on compelling prostitution

. The Supr em e Court ’ s decision in In re B.W. , a ju venile civil case, was not b inding in Turley nor is it binding o n our determination of this c riminal appeal.
18 Th e T

urley cou rt found In re B.W. persuasive, s tating that regardless o f any factual agree me nt to sex , ch ildren younger t han 14 years of age cannot as a matte r of law possess the req uisite cul pable mental state of the offense of prostitution and “c ann ot be tried for pros t itu tion.” Accord ing to the B. W. court, the legal incap acity of children u nd er 14 to kn ow ingly consent t o se x entirely does away with the need to consider whether any particula r child under 14 may have consented to sex as a factual mat ter. Turley , 59 7 S.W

. 3d at 43

– 44 (citi ng In re B.W. , 313 S.W.3d at 822

– 24 )

.41

Milton requests we e xtend the hol di ng in Tu rl e y to chil dre n ages fo ur te en thr ough seventeen , and hold th at because Jane , who was fiftee n a nd sixteen years
old when s he had sex with mult iple johns at his beh est, was n ot old enough to

consent to sex as a matter of law , the State failed to pr ov e she comm itted

pr o sti tuti o n to s u p port his conviction fo r t he offense of traffickin g of a child by compelling prostitution

. 19 Milton concedes that the same court that d e cided Tu r ley previously held that a sixteen

- year
- old chil d can commit the offense of prostituti on. See I

n r e B.D.S.D

. , 2 89 S.W.3d 889, 891 , 894 (Tex. App.

— Houston [14th Dist.] 2009, pet

. denied) (a ff irming adjudication tha t sixteen

- year
- old “engage[ed] i n delinqu e nt con d uct by committi ng t h e offense of prostitu tion , ”
observi ng that “ the statutory definition of ‘ prostitu ti on ’ in section 43.02 [ of the
Texas Penal Cod e] is not limited to con du ct by ad ults ” and “ [u] nder the

unam b iguous language of [Texas Pen al Code] se c tion 43.05, a person under the age of seventeen can commit the offense of prostitution ”)

. 20

19 A person commits p rosti tuti on “ if the person k n owi ngly offers or agrees to receive a fee from another to eng age in sex ual co nduct. ” T EX

. P EN AL C ODE § 43.02 (a).
20 The sixteen

- y ear
- old appel lan t in In re B.D. S.D. confessed “that sh e ha d kno wingly agreed to eng a g e in sexua l conduct , na m e ly sexual intercourse, for a fee. ” In re B.D.S.D. , 289 S.W. 3d 889, 891 (Tex. App.

— H ouston [14 th Dist.] 2009, pet. denied)

. Sh e cont ended that sh e ra n away to live wit h fr i ends who did not k now she was e ngaging in prostituti o n , which she di d “for th e mo n e y ‘ to buy things ’ that she wants. ” Id. at 892. S h e was not adjudicated “ as a victim of sexual conduct. ” Id. at 895.42

The Sta te argues t ha t Turley was incorrectly decided and that the Court of
C riminal Appeals will likely reverse it

. 21 It also argues that t h e plain langu ag e of
the P enal Co de and the L egis la ture ’s intent pre c lude the application of Turley to
the presen t facts. S p ecifical ly , the S t ate argues that two amendments effective in
2009 , a nd two amendments effectiv e in 2011 , m an if est a legislative i nte n t to
prosec ut e a perso n f

or comp e lling prostituti on of any child wi t h out proof that the

c hild consented to it

. First, th e State p oi nt s to the amendment of the “compelling prostitutio n ” statute after the decision in B.D.S.D. , w hich am ended the statu te to add the langu a ge: “cause s by any m eans a c h ild younger than 18 years to co mmit prostitution, regardless o f w h ether the act or k n ows th e age of the child at the time
of the offense. ” See T EX

. P ENAL C ODE § 43. 05 (a)(2)

. Secon d , the State note s that
the L egislature a mended Se ction 43.02 to add a defense to th e offense of prostitut ion , sta ting : “It is a defense to prosecution fo r an offe ns e under Subsection (a) that the actor engaged in the conduct that constitutes th e offense b e cause th e
actor wa s the v i ctim of conduct that co nstitutes an offense under Section 20A.02 o r 43.05.” 22 See id. § 43.02 (d) (footnote added)

.

21 The Court of Criminal Ap peals granted the State ’ s p etition fo r discreti onary review in Tu rley . The petition remains pe nding befor e th e Court of Criminal Appea ls a s of the d ate of thi s o pinion

. 22 As noted, Section 20A.02 of the Texas Pen al Code addresses “Trafficking of Persons ” and S ectio n 43. 0 5 pertain s to “ Comp elling Pros titution

. ”43

Third, the S t ate argu e s th e L e gi s l at ure a dded a definition of “child ” as “ any
pe rson y ounger than 18 y ears of age ” to S ection 20A.01(a) of the stat ute that

per tains to the t raffic k ing of p ersons and c o mpelling p rostitution

. Se e id. § 20A.01(a)

. Fi nally, t he Le g islat u re added an o ffense fo r a person who “traffi cs a child” and causes the child to “engage in, or become the victim of

. . . prostitution.”
See id. § 20A.02(7)(E)

. We need not decid e whethe r Turley was decided incorrectly , a s the State advances, nor do we fi nd Turley r el evant to our analysis. Turley relied on case law addressing the ability of childre n younger t han fourteen t o con sent t o sex
. That
issue is not be fore u s. Jane was fift een to sixteen years old at the time of the
indicted offenses and w e decl ine M ilto n ’ s invitation to extend Turley to hold t hat children between the ages of fourtee n and seventeen c anno t , as a m a tter of law , commit pr ostitution or be a victim o f a comp elling

- pr os t itution offense

. 23 As the court explained in In re B

. W

. , the “ notio n that an u nd erage child cannot legally consent to sex is of longstanding origin and derives fro m the

commo n law. ” See I

n re B.W. , 313 S.W.3d at 820

. Texas , however, “ fo llows the majori t y of states which have established a two

- step scheme that diff erenti ates

23 See also Evans v. State , No. 06

- 16

- 0 006 4

- CR, 20 1 7 WL 1089806, at * 1 , 6 (Tex. App.

— Texarkana Mar. 22, 2017, pet. ref’d) ( me m. op., not designated for pub lica ti on ) (affirming two conviction s f o r tr afficking of fiftee n
- year
- o ld girl a nd mo d ifying t hird conviction to reflect conviction for com pelli ng pro st it ut io n ).44

betw ee n sex with a younger child and sexual relations with an older teen. ” See id.
“Our Le gislature h as incorporate d this rati o nale into the Texas Penal C ode

. ” Id

. B y enacting S ection 22.011 of the Texas Penal Code , th e sexual as sa ult
statute, “ the Legislature made it a crime to intentionally or knowingly have no n
consensua l sex with an adult, or s ex under any circumsta nces with a child (a person under seventeen)

. ” See id. at 820 ; see also T EX

. P EN AL C ODE § 22.011

. Sect ion
22.011 provides cer tain affirmative def en ses when th e ch ild is younger than

s ev e ntee n, bu t older than th ir teen, “ such as when the accused is no more than three

years o lder than the child, or when the accused is the chil d ’ s spous e. ” See In re
B.W. , 313 S.W .3d at 821 (citing T EX

. P ENAL C ODE § 22.011 ( d ) )

. In those
cir cumstances, “ the child ’ s subjec tive agreem ent or assent becomes the m ain issue in determining wh ether or not a crime has been committed. ” Id

. at 82 1. T h us, contrary t o Milton ’ s argume nt , at least under some circ umstances, a child older
than thirteen , but you nger than eight een , may consent to sex.
Milton respond s that evidence of Jane ’s paid sexual encounters “ did not
includ e any of the circumst ances ” relevan t to the af fi rmative defenses in S e c t ion
22.01 1( e)

. He argues there is no evidence in the record regarding the actual ag e of
the dozens of joh ns with whom Jane had se x in exchange for money , a nd that
Jane ’ s descriptions of the m en w ith whom she had s ex ual encounte rs “ were more
t h an three years older t han her a n d not her spouse. ” Th ese fact s are45

inconsequentia l. The iss ue is no t whether there i s evidence here of the affirmative
defenses listed under Section 22.011 ( e )

. The point is that Section 22.011 and the

perm it te d affirmative d e f enses unde r that section r eflect our Legisl ature ’ s intent to

treat children o lder than t h ir teen dif ferent for pur poses of consent involving se xual
conduct

. This refu te s Milton ’ s blanket assertion that children fourteen to

sev enteen y e ar s of age can never co nsent to sex as a matter of law

. In light of the foregoin g , we hold that in the con tex t o f a conviction for

com p elling pros titution of a child and trafficking of a c h ild b ased o n compelling prostitution , a c hild older than t h irteen y ea rs old does not , as a matter of law, lack
the ability to consent to sex for purposes of c om m i t t i ng prostitu tio n
. b. Sufficiency of t h e Evidence
T he State argues that it proved Milton pi c ked up a “ 15

- year
- old [Ja ne ], took
her to hot els, told her to p ost s ex y pictures that resul ted in ‘ johns ’ agreeing on a fee
to h a ve sex with her, and [M i lton ] kept th e money she re ceived from doing that

. ”
V iewi ng the record in the light mo s t favorable to the verdict, t he evid e nce reflects
that a s soon as Jane met Milton i n pe rson, he began to “ groom ” her, prom ising he r gifts, “ all the stuff that a girl wan ts, ” making her feel “ spoi led

. ” The fi rst few days they were togeth er, h e brough t Jane food and ma rijuana and told her he w ould give her money

. Jane t estified that she th ou ght he was offering her a job. It was46

“ pro mises , pro m ises. ” Milton bought her whatever she wante d , ask ed h er every two hours w hether she was hungry, was acting “ co ol

. ” But things changed. Aft e r a few days, Milton to ld Jane that he expecte d her

“ to d o stuff with other men for mone y. ” He tol d h er to take sexy photos wearing revealing clot hes and to post the photos in ads on adult websites. The ads , w hich
li ed about Jane ’ s age, re s ult ed in agre ements for her to have sex with men, whose

mone y Milton ke pt

. F rom Septem ber 1 9 , 201 8 until November 7, 2018, Jane was sexually

assa ulted by a pproxi mat ely sixty diffe rent men in s e ven different hotel s, 24 all of
who m paid for sex acts , and some of whom w er e aggressi ve
. Some t imes , Jane was assaulted by as man y as s even or eight men in a single day

. And o n one of those days, Milton assaulted Jane. According to Jane , M i l ton did not let her sleep and
forced her t o take d r ugs to stay up

. If she did not m ake money for hi m, he did not
fee d her. Approxima tely six we ek s aft er she met M ilton, he told Jane to rec ruit
additional girls so he c ould make more money. Jane got on t he SKOUT a pp and

me t Marcy, telling her she could get her nails done and get money for food an d
cloth es i f she went with Jane. Jane an d Milt on pi ck ed up Marcy a nd went to a

24 In the sixth hote l, where they stayed a single nigh t , Milton “ gave ” Jane to Baham

. Jane was at the seventh hotel one night before she was recovered. Ja ne was i n hotels with Milton appro ximately seven weeks.47

hotel where Marcy , who was thirteen years old , put on lingerie and pos ed for photo s
. Jan e posted the photos on a sex a d vert i sing s i t e and a man came t o the
hotel a nd paid to have sex with M arcy that n ight

. Jane di d n ot hav e a d ri ver ’ s license or a car and , therefore, had no way to get
home from the h otels to which Milton to ok her. Eve n when she had access to a phone, she knew Milton would check t he phone later to m oni tor her calls. In any
event, she did not want t o call her fa mi ly because she was concerned for their
safe ty, emb arrassed , did not want h er family to be dis app ointed in he r , and felt like they were bette r o ff without her

. Jane testified she was relieved when t he police
found her.
We find the jury could r easonably h av e determin e d the evi dence wa s sufficient to establish Milto n co mpelled pr ostitution of a child and trafficke d a child by compelling prostit ution. See , e.g., Waggoner v. State , 897 S.W.2d 510,
51 2

– 1 3 ( T ex. App.

—

Austin 1995, no pet.) (holding e vidence s uf fi cient to support jury ’s finding that defend ant who provided contact and meeting, negotiated price, provided cond om and cell phone, drove mi nor to loca tion, and persuaded minor to “go through with th e e n counter ” knowingly caused min o r to commit prostitu ti on ) ; Menyweather v. State , No. 05

- 13

- 011 08

- CR , 2014 WL 645082 6, at *5 (Tex. App.

— Dallas Nov. 18, 2014, no pet. ) (mem. op., no t designated for publicati on) ( holding evidence that defendant posted inte rnet ads for customers to contact48

minor, trans port ed mi no r to locations to have sex, accept ed mo ney fr om minor that

s he was given for sex, us ed money to pay for hotel s and items for minor, and
beha ved abusive l y toward minor if she did not act appropriately toward him w as sufficient to s upport convicti on for co mp el ling prostitu tion) ; Quillens v. State , No.
01

- 18

- 00056

- CR, 2018 WL 4701580, at *4 (Tex. App.

— Houston [1st Di st.] Oct. 2, 2018, no pet.) (m em. op., no t designated for publication) ( holding evidence was sufficien t to support conviction for compe lling pro st it ution where d efendant posted
minor ’s ad on website used by traffickers , arranged transportation to take mino r to
“out

- call,” waited while minor had s ex , and then took her to hotel ).
We overrule Mil ton ’ s second issue.

Evidence of Extraneous Off en ses In hi s third issue, Milton argues the trial co urt abused its dis c retion in
admi tting extraneous offense testi m ony r egar ding his alleged traffick i ng o f a
thi rteen

- year
- old child (Marc y ) based on compelli ng prostit ution because the
evidenc e was not suf

ficient f or a reasonabl e juror to find he commi tted the offense beyond a reaso nab le do u b t as re q uired by Article 38. 37 of the Texas Code of
C rimi nal Pr oced ure. A. Standard of Review and Ap plicable L aw We r e v iew a tr i al court ’s ru ling on th e admi s s ion of evidence f or abuse o f
discretion

. Davis v. St

at e , 32 9 S.W.3d 798, 803 ( Te x. Crim. App. 2010)

. Th is49

standard of review applies to a trial c ourt ’ s d e c i sio n to ad mi t evidence o f

extraneou s o ffen s e s
. De La Paz v. State , 279 S.W. 3 d 336 , 343 (Tex. Crim. App. 2009) ; D ev o e v. State , 354 S.W.3d 457, 46 9 (Tex. Cr im. App. 2011)

. “ A s l ong as the tr ia l court ’ s rul ing i s w ithin the ‘ zone of rea son able disagreem e n t , ’ ther e i s no abuse of discretion, an d th e tria l court ’ s rulin g w il l be uph e ld

. ” I d.
A n extr aneo us o ffen se is “ an y act of m isconduct, whether re s ulting in

p ros ecut io n o r not, w h ich is n ot shown in the charging i n strument and w h ich was
shown t o h av e be en co mmitted by t he accuse d

. ” Mart i nez v. State , 1 90 S.W.3 d
2 54, 262 (Tex. A pp
. — H ouston [ 1st Dis t .] 20 06 , pe t. re f ’ d) ( q uoting Worley v.
State , 870 S.W.2d 620, 622 (Tex. A pp
. — H ouston [ 1st Dis t .] 1994 , pe t. ref ’ d) ).
Because an accused must b e tr ied only for the offens e for which he is cha r ged and may not be tried for a coll ateral crim e , extraneous offense evi dence is us ua lly not
ad missible to prove “ a person ’ s cha racter or character trait ” in order “ to prove that on a particula r occasion the pers on acted in accordance with the c haracter or trait

. ”
T EX

. R. E VID

. 404( a)( 1). But i n pros ecution of crimes against children , in cluding

tr afficki n g , Article 38 .37 of the T exas Co de of C riminal Procedur e provides that the State may, notw it hs tanding Te x as Rul e s of Evidence 404 25 a nd 405 , 26 in t roduce

25 Rule 404 allows t he admissi o n o f “Cri mes, Wrongs, or Ot her Acts” of an accused to prove “motive, oppor tunit y, in tent, pre p aration, pla n, kno wledge, i de nti t y, abs ence of mistake, or l a c k of accide nt .” T E X

. R. E VID . 4 0 4(b). Such ev ide nc e is not ad mis sib le “to prov e a per s o n’s charac t e r in ord er to show that on a partic ular50

evidence at trial “ t hat the defen dant ha s committ ed a separ ate of f ense [

. ] ” T E X

. C O DE C RIM

. P ROC

. a rt. 38. 37 , § § 2 (a)(1)(A), 2 (b)

. Specific ally, A rt icle 3 8.37
allo ws t he admi ssi on of evide nce co ncerning certai n e numerated off enses, in cluding sexual assault or trafficking of a child other than th e compla i nant , when
the defendant is on tr ia l for sex tr affick ing th e chi ld complainant u nder Texas
Penal Code S ection 20A.02

. S ee Bel che r v
. State , 474 S. W.3 d 840 , 84 4 ( T ex. App.

— Tyle r 2015, n o pet.) ( hold ing that in trial of defendant fo r c e rtai n se xual
crimes against chil dren , A rti cle 38.37 al lo ws ad mi s sion of certain enumerated
offenses p reviously committe d by defendant against non
- c omplainant ) ; Buxton v.
S tat e , 526 S. W .3d 666, 68 9 (Tex. A p p.

— H ou sto n [1st Di st. ] 2017, pet. ref’d) ( affirmi ng tr ial co urt ’ s admis sion of evid ence pur sua nt to A rtic l e 3 8.37 th at
defendant committ e d extra neo us ba d acts again st c omplai nant ’ s sister ) ; Fahrni v.
Stat e , 47 3 S.W.3d 486, 491 (Tex. A p p.

— Texarkana 2015, pet. ref’d) ( noting that
evidence of certain extran eous offe ns es committed by defen dant against no n
comp lai n a n t ch ild is admissible under Article 38.37 )

. The e vidence is adm issible

“ for any bearin g the e v idence has on relev ant matters , includi ng the character of

o ccasion the person acted in acco rdanc e wit h the cha r acter.” T EX

. R

. E VID

. 404( a)

. 26 Rule 405 states in pe r tine n t part, “Whe n a pers o n ’s chara cte r or character tr a i t is an esse nti al ele ment of a charg e , claim, or d ef ense, the character t r ai t may als o be p roved by relevant spec ific insta nces of th e person ’s conduct. ” T EX

. R

. E VID

. 4 0 5 ( b ).51

the defendant an d acts performed in conform ity with th e character of the
de fendant

. ” T E X

. C O DE C RI M

. P ROC

. a rt. 38. 37 , § 2 (b)

. I f the decis ion to admit ev idence i s suppor t ed by the record , there c a n be no
abuse of discr etion and the tria l court ’s ruling will not be reversed. Marsh v. State , 343 S.W.3 d 4 75, 478 (Tex. App.

— Texarkana 2 011, pet. re f ’ d ) (citi ng O sbourn v.
Stat e , 92 S.W.3d 53 1, 53 7 (Tex

. Crim. App. 2002 ) ). The reviewing court will not

s ubstitu t e its own deci sion f or that of t he trial court. Marsh , 343 S.W.3d at 47 8 (citing Moses v. State , 10 5 S.W.3d 622, 627 (Tex. Crim. App. 2003))

. Be fo re e viden c e of a separ ate offense agai ns t a person other than the compla ina n t may be adm i tted, the t rial court must first c onduct “ a hearing ou tside

t he jury ’ s presence [and conclude ] that the eviden ce like ly to b e ad mitted will be
ade quate to s upport a j u ry find in g t hat th e d efendan t co m mitted the s e pa rate
offense be yond a reaso nab l e doubt. ” Ca s tillo v
. S tate , 57 3 S. W.3d 869 , 8 8 0 (Tex. App.

— Houst on [1st D ist.] 2019, pet. ref’d) (cit in g T EX

. C ODE C RI M

. P ROC

. art.
38.3 7, § § 2(b) , 2

- a )

. “ The de fend ant ne ed n ot have b een cha rge d w it h, tr ie d f or , or

c on vi cte d ” of th e separa te of fense f or t h e evide nce t o be a d miss ible. I d

. a t 88 0

– 8 1 ( noting that “ Texas appellate c ourts h ave affirmed the admis sion of or reliance o n

ev iden ce that the de fendant commi tted a sep ar at e sexual o ffen se agai nst anoth er ch ild u nd er artic le [3 8. 37] despite t he dism iss a l of charges c oncer ni ng those

sepa ra te o ff

e n se s ”) ; see a l so Wishert v. Stat e , 654 S.W. 3d 317, 331 (Tex. A pp.

—52

Eastland 2022, pe t. ref’d ) ( “ For this type of [extra neous ] evi de nc e to be a d miss ible

un der Arti cle 38 .37, Se ction 2( b), th e defendant ne ed not hav e been charged with, tried for, or co nv ic t e d of the separ a te offense

. ”).
B. T he A rticle 38.3 7 Hearing
Prior to and d uri ng trial, the trial court con ducted a n Artic le 38. 37 h ea ri ng
out side the presence of the jury to con sider evidence of extraneous offenses involving Milton ’ s a lleged trafficking an d c ompelling of prostit ution and sexual

assau l t of Marcy

. Se e T E X

. C O DE C RIM

. P ROC

. a rt. 38.37, § 2

- a(2 )

. A fter the tri al

court r ul ed evidence of the extran e ous offen se s w as a dmissible, t h e c ourt g ranted
defense counsel ’ s request for a running objection to an y testi mon y from Jan e or Marcy abo u t th e extrane ous offense s
. Only Ma rcy testifi ed during the f irst porti on of the Article 3 8. 37 hearing.
Mar cy was s e v enteen years old w hen she test ifi e d. She testified that in Octo b er 2018, sh e wa s thirteen y ears old and in eight h gra de. That mo nth , Marc y met a girl

on “ MeetM e, ” a social app. They introduced themselves to ea ch oth er and the y de cided to meet o n Hal loween 20 18. Mar c y di d not know the othe r g irl ’ s true

nam e , but she later identi fied h er as Jane.
Wh en Jane came t o pick up Marc y , there was a m an in th e f ront seat an d Marcy got into the back seat of th e car. Jane t ol d Marcy th e m an was her fr i end

. They drove t o the InT own S u i tes in Greenspo int and went into a hotel room. “ I53

r emember him leavi ng and it was just me and the g irl an d she gave me . . . ling erie

to try on and . . . take pictures in it. ” M arc y identifi e d Milton i n th e courtroom as
the man w ho was with Jane w hen they picked her up. Marc y a nd Jane spent the night i n the Into wn Suites . Marc y d id no t see Milto n again that n ight but believed he paid for the hotel room

. A fter t hey took the phot os, Jane upl oad ed them o nt o some “ s ex ads ” and

“ sex Websites , ” “ w h er e people . . . pay to have sex with you. ” After the photos

were poste d, a man came to t h e hot el, Jane left the room, and Marcy and the man who ca me to the hotel h ad sex. “ I got the mone y and then I gave it to [ Ja ne ]

. ” She
do es not know the na me of the m an with whom she ha d sex

. “ [H ] e came to see me
because he wanted to ha ve sex and he pai d for it, I guess. ” Jane told Mar cy what to charge him and after he paid, she gave Jane the money. The next mo rning,
C al lo wa y came to get Marcy and Jane

. H e d ropped Jane off at anot her hotel and Marcy a t her middl e school

. M ilt on argued Marc y ’ s tes timony wa s “ insufficient fo r a j ury to be able to
f in d a guilty verdict beyond a reasonable doubt ” because they did not know th e identi t y of the man who pi ck e d up Mar cy fr om the hotel in the morni n g. In
addi tion, he argue d there was no testimony that Milt on r eceiv ed mon ey or identifying whose phone was used to take photos . He argued all th e c lo thes given to Marcy wer e given to M ar cy by Jane

. He state d , “ The other fema l e [Jane] is the54

fe ma l e th at mad e contac t with h er . The other female was the one t ha t p articipated
or assist ed her in an y way, shape, and form in the room. ” Milton argued there was no evi dence reflecti n g who pai d fo r the hotel room, and he noted that M ilto n did not pi c k Marcy up f

ro m the hotel room in th e morning o r take her t o school.
Milton a lso argued that , under Turley , he c ould not ha ve trafficked or

comp ell ed the p r ostituti on of Marcy because sh e was only t hi rt een yea r s old at th e ti m e of t he alleged of

fense

. Giv en he r age , Milton argue d Marcy was not able to

c onsent to sex , as a matter of law, and th us she wa s unable to c ommit the offense
of prostituti on
. The State argued that under Articl e 3 8 .37 , evide nc e that Milton committed a separate offense w a s a dmi ssible “ for any bearing the e vi d ence ha [d] on releva nt matters including [hi s] cha racter

. . . and acts per for med in conformit y wi th [such]
character

. ” The S t ate argued that wa s “ exactly what [ Marcy ] te st if ied to. ” That is,
Ma rcy testifi ed that Mi lton to ok he r to a hotel whe r e she was “ caused to comm it

. . . an act of prostitution

. ” The informa t i on Marc y testified to “ goes to [Milto n ’ s]
p ropensity to traf

fic children, whic h i s wha t he ’ s o n trial fo r in this case. I t also
coul d go to his inte n t or hi s plan. ” The State expl ained that the dates about w hich Marcy testified corresponded with the time s Jane wa s with Mi lto n. The State

a rgued the evidence was adeq uate to support a finding that Milton “ co mm it ted a55

separ ate offense be yond a reas onabl e do ub t an d goes to his ch a racte r as well as

ac ts perform ed in conformity with his c h aracter. ”
The trial c ou rt found that Marcy ’ s testimony was c r edible but “ there was nothing in her testimony regard ing sta t em e n t s made by Mr . M ilton, actions taken by Mr. Mi lton outside o f h im driving to the ho tel. ” Th e c ourt hel d that while the
State ’ s evidence was credible, “ a j u r y would not find beyond a reasona ble doubt
that Mr. Milton had committ ed the off ense t h at the Sta te i s alleging regar ding [ Marcy.] ” The cou rt sustained Milton ’ s o bjections to Marcy ’ s te stimo ny under
38

. 37. The court not ed , however, that it could reconsider the ruling after he aring additional testimony during trial.
T he A rticl e 38.3 7 hear ing r econv en ed on the third d ay of trial

. Duri ng th e

se cond portion of the 38.37 h e aring , Jane testified that Mil t on wanted her to start

re c ru iting other girl s. She s tated h e wanted her to “ find other girls that were
willin g to do the same thing th a t I w as do ing, wh ic h was sleepi ng with men f or

m oney. ” He ex pe c ted her to do t ha t by texting them. “ [ H ] e felt if I was a girl

tex t ing another girl a bout what wa s going on, he believe d that girl would be more
comfortable co m ing w ith me; but , i n reality, the gi r l w as for h im

. ”
Jane test ified that she went along wi th Milton ’ s directive to recruit others. “ I just did it. Bec ause at t h at point, I just looked at him like a boss. Like, he mad e the money I was makin g. He was the on e f eeding m e . He was the one, like , tell in g56

me that he was go ing to g ive me this and t ha t . S o I didn ’ t want to do nothing to
make him upset beca use I felt l i ke at that point I wasn ’ t going to get at l east food

or a nything. ” S he t estified s he was wor ried abou t Milton get ting upset wit h her
beca us e he had guns a round

. During her stay a t t h e third hotel , Milton gave Jane a phone to use to text girl s and to “ find an ot her girl to make more mo ney. ” She was to use the s ame SKOUT app
. “ W he n I texted g irls, I said the sam e thing th at he told me, wh ich

w as that they ’ d get clothes, n ails , anyt hing th ey wanted done , they would get

money. I didn ’ t stat e wha t it was , but I wo uld tell them that. ” Marcy responded to
Jane ’ s texts. “ S he looked g ro wn ” in her profile photo and h er profile s aid sh e wa s nin eteen

. J ane “ assumed that she was 19 an d then I to ld [Milton] about it and I

to ld him I found a girl and she ’ s willi ng to do it

. . . . ” Milt on told her the girl

c ou l d ke e p h alf of the money sh e made , and he would ke ep the ot her half.
The next d ay, Jane a nd M ilton went to get Marcy at her hom e “ and t hen I
texted her to come o ut. When she come out, I could t ell that she was a little girl. ”
Jane could t el l Marcy w a s young because Jane had to cal l the girl ’ s m om to tel l her
wher e she was. After Ja ne spoke t o th e girl ’ s mom, Milt on took them back to the
third hotel

. Milton paid for the hotel. “ [T]he whole re a s on w hy he brought tha t
g irl t h ere in the fir st place was to mak e m ore mon ey. S o it

– it wasn ’ t sitting right

w ith me, because I know her prof ile said t ha t she was 19; b ut after calling h er mom57

and then just looking at her, I was , like, you ’ re young. I ca n te ll you ’ re young.
A n d I fe l t ba d. I felt r ea lly bad. ”
M ilton le ft Jane wit h Marc y at the h otel. “ So my who le instinct was just to
finish what I sta rt ed and just get her back home. ” S h e just wa nted to take pho tos
of both of them , as he told her t o do, “ because h e wa s try i ng t o see if ma ybe both of us togeth er cou ld ma ke som e more m on ey
. . . . ” She d id not recall whether she

po sted th e phot os or sent t he m to Milton to post

. Jane identified th e photos she took of the gi rl on Novemb er 1, 2018. Marcy
had one sex date after the photos were posted

. A lot of gu ys were texting after the photos w ere pos ted but Jane put the phone on sile n t mode. “ I turn ed th e r inger off
becau se I didn ’ t wan t to be wi t h nobody. I didn ’ t want her to be w ith n obody, and

t hen I j ust wanted to go to sleep. ” Jane and Marcy both fell aslee p
. Milton came
back “ because I wasn ’ t answering t he phone calls

. ” “ I [had] sile nc ed t he p ho ne
. And I guess whil e the phone was silenced and I was sleepin g, he was calling me; and I di dn ’ t hear t hose calls, so he came t o the hotel. ” M ilto n and his friend started

“ going of f that why am I sleeping, I ’ m missing out mo ney, and that I alw ay s do
thi s sh it

. . . that I always go to sleep when I should b e mak ing money. ”
E arly in the morn ing, a man c ame over t o have sex with Ma rcy
. Ja ne testified she “ was outs ide the room. S o I was right t here. ” Her understa ndi ng in

co m m unicating with the man w as t hat the re w ould b e a sex act f or money. T he58

man paid $70 to be wit h Marcy

. J ane gave $35 to Marcy an d $35 to Calloway , becau se Milton wa s unavailable

. Calloway and an ot her gi rl pi c ked up Jane and Marcy fro m the hot el and droppe d Marcy off either at sc ho ol or at her apa rtment

. Jane did not se e Marcy again af ter that. Jane was the one who commu nicated with
M arcy , to ok the photo s, and obtained the payment

. After the second Article 3 8.37 hearing, the trial court all owed the admission
of Ma rcy ’ s tes t im on y
. The defense was granted a ru nn ing obje c ti on to any testimon y fro m Jane about Marcy and a r unnin g o bje c tion to Marcy ’ s tes timony
itse lf.
C. A nalysis
M ilton argue d in the trial court th at Marcy ’ s te stimony should be excluded
becau se given th e holding in T ur ley , M arcy was not a ble to com mit t h e of fense of prostitution as a matter of l aw
. On appeal, h e arg ues that Marcy coul d not have
become the vict im of compellin g prostitution “ due to her incapacity t o c onsent to
sexual conduct, i.e., conduc t prohibit ed b y Secti on 43.0 5

. ” Moreover, he argues,

“ [ t] he t estimony of a chi l d w ho experien ced prost i t utio n at th irt een y e ars o f age

was e motionally strong , a n d detracted [ s ic] the jury ’ s consideration as to whether [Milton] traffi cked [Jane] b y aiding her prosti tu ti on
. ” He claims Marcy ’ s
tes timony “ had a s ub stantial and in jurious influence on the jury, th erefore, h is r ight
to a fair trial was violated. ”59

We need not decide whether Marcy could have legally conse nted to sex for purposes of our analy sis be c ause as t he S tate points out, the S t ate gave Mi lton

not ice under Arti cle 38.37 that it would be alleging not only t hat Milton c aused Marcy t o engage in or become the victim o f prostitution , bu t also that M ilto n caused Marcy to engage in or b e come the vict i m of sexu al a ssault under Section
22.011 of the Texas P enal Code. 27
T he Stat e explained th at the pretrial extraneo us
- offense notice it served on
Milt on a lleged that Mil ton “ knowingl y transport[ed] [ Marcy ] , a person y ounger tha n eighteen yea rs of age . . . and did ca us e [M arcy] t o bec ome the vi cti m of
conduct prohi b ited by Secti on 22.011 of the Texas Penal Code. ” 28 Th e State not ed

t hat (1) Jane testifi ed she assi sted in recruitin g Marcy and that M arc y was
t rafficke d when she was taken to a hotel where she ha d sex w it h a man fo r money ,

a nd (2) t r ans porti n g by d ri ving p lus a sexual as sa ult is trafficking. The State

asse rted that an e xtraneou s of f en se admit ted under Article 38

. 37 does n ot have to

mat ch the offense for which the defendant is on trial.
In ob jecti ng to t he admissio n of the ext raneous offense evide nc e, Milton relied exclusively on Turley

. H e argued that th e a dmission of the extraneous

27 Under Article 38. 7 7, Sec tion 3 the “ s tate sh a ll give the defendant notice of t he state ’ s intent to introduce in t he case in ch ie f evidence described by Section 1 or 2 not later than t he 30th day before the date of the defendant ’ s trial

. ” T E X

. C O DE C RIM

. P ROC

. a rt

. 38.37, § 3. Milton does not di s pu t e he received notic e from the State as required under Article 38.37 , Section 3

. 28 S ectio n 22.011 of the Te xas Penal Code pertains to s exua l a ssault.60

offen se evidenc e involvin g Marcy would “ co nflict [] with Turley and i s

— and
would be confusi n g, misleading , and under [ Tex as R ule of Evidence] 403, I feel , I
guess

— well , absent a [Ru le] 403 29 ana lysis and [an Article] 38.37 , that Defense

— that de fenda n t would be harmed mat eria lly by that. ” On appea l, he si milarly

ar gues that Marcy ’ s testimony w as inadmis sib le because she
did n ot b ec ome the vict im of c ompelling prostitut i o n due to her incap acity to conse nt to sexual conduct, i.e., conduct prohibited by Section 43.05

. Appe l lant could not commit the offense o f compelli ng prostitution as a matter o f law, and because the evidence d id n ot suppor t a c onclu s ion that he did comp el [Mar cy] to commit prostitution, he also could not commit the offense of traffi cking of a person. Milt on does not add ress the S tate ’ s argument that the extraneous offense evidence
was also offered to es tablish t ha t he trafficked Marcy b y causing her to be come the
victim of s exual assault under Section 22.011 of the Texas Penal Code

. We conclude t h e e vidence concerning the extraneou s offense sati sfi ed the
criteria for admissi b ility under Article 38.37, and thus t he t rial court did not abuse
its dis cretion i n admit ting the extraneous offense evidence. The decision in R itz v.
State , 481 S. W.3d 383 (Tex. App.

— A ustin 2015, pet . dis m ’ d ) is instruct ive. In

29 Tex as Rule o f Evidence 403 states the “ court may exclude relevan t evi denc e if its p robati ve value i s substantially outweig h ed by a danger of on e or more of the followin g: u nfair p re

j u dice, co nfusin g the issues, mis l e ading the jury, un due dela y, or ne edlessly presenti n g cumulative evidence. ” T EX

. R. E VID

. 403

. Evidenc e is rele vant if “ ( a) it has an y t e n dency to make a fact m ore or les s probabl e than it wo uld be without the evidenc e; a nd (b) t he fact is of consequenc e in dete rm i ning the action

. ” T EX

. R. E VID

. 4 01.61

Ritz , the 44

- year
- old defe ndant ( “Ritz ”) met a 14

- ye ar
- old gi r l on an online dating
site

. Id. at 384

. A t first, Ritz and th e gi rl had sex in his car or outside on a blanket.
Id. Late r he picke d the girl up ne ar her home, d rove her t o his home, had sex with
h er there, and dropped her off near her h ome. Id. Citing S e c tions 20A02.(a)(7)
and 22.011 of the Pe n al Code, t he court of ap peals h eld , “ if Ritz transported [the girl] and caused her t o become t he victim o f

. . . sexual assault, then h e com m itted trafficking of persons [

. ] ” Id. at 3 85. The court con tinued, “ [v ] i ew ing this evidence in the ligh t most favo r able to the jury ’ s verdict, we conclude that a rational trier of
fact could have found that Ritz transpo rted [the girl] by driving her to his h o me and back, [and] that Ritz caused [the girl] to beco me the victim o f con duct enumerated in section 20A.02(a)( 7 ) by e ngaging in sexual act ivities with her, including
intercourse [.] ” Id

. Similarly here, the eviden ce shows that Mi lton trans ported Ma rcy b y pickin g her up at a friend ’s home and taki ng her to a hotel, wher e he ca used her to become
the victi m of a se x ual assault. Marcy test ified that Milton and Jane drove her to a
hotel where Jane dressed her up and to ok pictures. He r pic tur es were then pos t ed in a sex ad. Marcy testified that a man in his “ lat e 30 ’ s ” res po nd ed t o the ad , came to the hotel, and pen e t rated her vagina with h is penis. An adult engaging in sexual
intercourse with a thirteen

- year
- old is a criminal act. See T E X

. P ENAL C ODE62

§22.011(a)(2)(A) (stating person commits offense if person c auses pen et ra ti on of
child ’ s anus or sexual organ by an y means)

. A ltho ugh Milton did not lodge a formal Rule 403 objection to M arc y ’s testimony, he did make a running obj ection to Marcy ’s testimony duri n g trial

. While it is les s than clear that the runn ing objecti on w as lodged under Rule 403,

we liber all y c onstrue his run ning objection as an objection under Rule 403

. The
Wa co Court of A p peal s r ec ent ly addressed the relat ionshi p b e t ween Article 38.37

a nd Rule 403 : The admis sion of evidence pursuant to Ar ticle 38. 37 , S e ction 2(b) is limited by Rule 40 3 ’ s b ala n cing test, w hic h permits admiss ion of ev idence as long as i ts probat ive value is not s ub s ta nti ally outweighed by its poten tia l for unfair prejudice

. Even so, Rule 403 “ shoul d b e used sparingly to exc lude rele va nt , otherwise admi ssible evidence th at mi ght bear on the cre d ibility of eith er t he de fendant or complain ant in su ch ‘he said, she s ai d ’ cas es.” Because evidence of sep ara t e sexual offenses is “probative on the issu es of in tent and a defendant ’ s character o r p ropensity to co mmit sexual assaul ts on c h i ldren” if su ffi c ient evidence i s p r ovide d regarding the ext raneous o ffense, the p robat iv e v al ue of sexual o ffenses c ommitt ed a g ainst other children is generally not subs tanti all y outweighed by the “d anger of o n e or more of the fo llowing: unfair pr eju di ce , confusing th e i s sues, misleadin g t h e jur y, undue delay, or needlessl y presenting cumul at i ve e vidence

. ” Deggs v. Sta te , 64 6 S

. W .3d 916, 925 (Tex. A pp.

— Waco 2022, pet. re f’d) (in t ernal
citations omitt ed )

. I n co n du ct ing a R u le 403 balancing test , the t ri al c ou rt must consider the
followin g n on
- exclusive factors :63

(1) how pro bative the evidence is, ( 2) the potential of the evidence to impress the jury in some irrational, but ne vertheless indelible way; ( 3 ) th e tim e t he proponent needs to develop the evid en ce ; an d ( 4) the proponent ’ s need fo r the evidence.
Colone v. State , 573 S.W.3d 249, 266 (Tex. Cr im. App. 2019)

. T he fa ctors “ ma y well blend together in prac tice .” Gigliobianco v. State , 210 S.W. 3d 637 , 642 (Tex

. C ri m. App. 2006)

. Upon our revie w , we fi nd t h e R u le 403 factors support the
admi ssion of Marcy ’ s testimony.
Under the first fa ctor , ‘ “ pro bative value ’ refers to the inher ent probative
force of an item of evidence

— that is, how strongly it serve s to make m or e or less probable the existe nce o f a fa ct of consequence to the l itigation

— coupled with the proponent ’ s need for that item of eviden ce. ” Id. at 641

. Marcy ’s and Jane ’ s testimony regardi ng th e recruitm ent and sexual assault of Marcy at Mil to n ’ s instruc ti on i s proba tive of M i l ton ’s charac ter o r p ro p ensity to commit t rafficki ng of

c h ildren

. Acco rdingly, i t f avors a dmi ssion.
The second fact or ad dresses the potential o f the extraneous offe nse e vi dence
to i mpress the jury in some irrational, bu t indelible w ay
. T he trial court included
an instruction in the jury c harge concerning the extra neous offense :
You ar e . . . i n structed that if there is any evidence before y o u in this case regarding the defendant ’ s committing an alleged of fense or offe ns es other th an t he of fense alleged against hi m in the in dictment of this case, you cannot consi der any evidence for any pur pose u nless you find an d bel ieve beyond a reason able doubt that the d efendant committing such other offense or offenses , if any , and e ven then yo u ma y onl y con s id er the same in d etermining the motive, opportunit y ,64

i ntent, prepar ation, plan, knowledge, iden tity, or absence of mistake or a ccident of the defendant, in any, in connection with the off e n se, if any, alleged agai n st him in the i ndictment a nd f or no other purpose.
In our review , “ we generally presume the jury fo ll ow [ ed ] the trial court ’ s i nstru ction s in the manner presented

. ” Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) ; cf. Ryder v. State , 581 S.W.3d 439, 4 53 (Te x. App.

— Hou st on [14th Dist.] 2019, no pet.) (holding li miting instruction m ini mized any

“ im permissibl e inferen ce o f cha racte r conformity ” ) ( citing Lan e v. State , 933 S.W.2d 504, 520 (Tex. Crim. App. 19 96) ) ; Flor es - Castro v. State , No. 12

- 16

- 00334

- CR , 2017 WL 4675367, a t *5 (Tex. App.

— Tyler Aug. 23, 2017, pet. ref’d) (mem. op., not designated fo r publication ) ( noting limiti ng in struc t ion in jury charge “ somewh at counterbalances the danger of unfair prejudice ” ) (citing N ewton

v. State , 301 S.W.3d 315, 320 (T e x. App.

– Wac o 20 09, pet. ref ’ d) )

. Thus, the
second fact or weighs in favor of admiss ion.
Insofar as t he third factor is conc e rned, Marc y ’ s testimony d id n ot consume an inordinate am ount o f time or repea t evidence that already had been admitted during trial

. Her trial t es timony spanned approximate ly twenty

- nine pages of the reporter ’ s record, whic h compri sed m ore than 600 page s
. Se e Deg gs , 6 4 6 S.W.3d

a t 9 27. Th i s fac tor weighs in favor of admis sion.
The fourth factor pe rtains to the State ’s need for the ev idence. Al th ou gh the
admitted ads provided s ome physic al evidence s upporting the charges against65

Mil ton , Ja ne was not physicall y injured by the as s a ults and her veracity and

consent were at issue

. 30 , 31 Indeed, in his cross

- ex ami nation of Jane, Milton ’ s

co unsel re min de d jurors that Jane had previ ously run away , that she provided a f ake age, emai l, and name when she went on SKOUT , t hat she le ft home to me et
Milton with no way for anyone to find her, and that she s moked marijuana about
once a week w hen she me t Milton

. Mi lt on ’ s counsel elicited testimony that

som etimes J ane posted th e pict u res fo r her ads , tha t she d id not run away when she

w as left alone in the hotel room , and that she could have con tacte d her father but

was too embarrassed a nd ashamed

. Jane also testi fi ed in response to defense

coun sel ’ s questi o ns that she made contact with Ma rc y, asked her if she wanted to make money, gave her clothes, took photos of her, poste d photos, g ave her a
cond om , “ assisted her in get ting a john , ” and h ung aro und th e hotel u ns up er vised while Marcy had sex wi th a jo hn. In light of this test imony, w e find the trial court
reasonabl y c ould have det ermined the S t ate ’ s need for the evidence favored
admission of Marcy ’ s t estimony regardi ng the extran eous offense

. We concl u de the pro b at iv e value of the extraneous offense t est im on y was
not substan ti ally o utwe ighed by the dange r of un fair p r eju dice. See T EX

. R. E VID

.

30 There was evidence Ja ne had contracted chlamy dia

. 31 S ee N

ewton v. State , 301 S.W.3 d 315, 320 (Tex. App

. — Wa co 2009, pet. ref’d) (holdi ng State ’s need for extraneous

- o ff ense evidence was “considerable ” when there were no e yewitn esses and “no physical evid ence available to cor ro b o r a t e the c omplainan t ’s test imony ” )

.66

403

. We ho ld th e trial court did not abuse its discreti on in adm i tting the testimony.
We overrule Milton ’ s t hird issue.
R ef orming the Judgment
Milton asserts in hi s first issue t h at th e trial co urt ’s final judgm ent s in Cause
N umber 1612515 and Cause Number 1612516 s hou ld be refor m ed with respect to
the first enhancemen t paragraph and the concurrent nat ure of the sentences. In their current form, the j ud gments state with respect to the first enha n cement
parag raph th at Milton “pl e aded true ” and the finding wa s “ found tru e. ” An d rather
th an indicat ing that the se ntences are to run concurr ently, as the trial court ordered,
th e ju dgments state “N/A. ” Mi lt on argues that the fin ding on the first en h ancement paragraph should be refor med to state “N/A ” ins tea d of “ pl ead ed true ” and “fo und

true , ” and that the judgmen ts should b e mo dified to indicate the senten ces are to

run concurr en tl y, rather than “ N/A. ”
T h e State conced es the final judgme nts are incorrect and sh ould be reformed

as M ilton requests

. The State als o reques ts , h owe ve r, tha t t he final judgmen ts be
revised to ind icate that Milton “ is required to r egister a s a sex off en de r in
accordance with C ha

pt er 62, Tex. Co de Crim. Proc. ” and that “[t]he age of [the]

v ictim a t the time of the offense was 15 year [] s old. ” 32 The jud gme nt s curre ntl y reflect that Milton is not req uired to register as a sex offender , a nd wit h respect t o

32 Milton did not file a r e p ly brief responding t o the Sta te ’ s request for this modification

.67

th e complainant ’s age, the j udgments st ate , “N/A

. ”
The Sta te ar gues that Milton was convicted of (1) trafficking a ch ild by

com pel lin g prosti tut ion and (2) traf ficking of a child by causing th e child to
be come the victim o f sexual abuse , bot h of w hich “a re subject to Chap t er 62 of the
Texas Code of Crimina l Procedure

. ” See T EX

. C ODE C R IM

. P ROC . art

. 62.001(5)(K); T EX

. P ENA L C ODE § § 20A .0 2( a )( 7 )( H ), (a ) (7 )(C). Article 62.002(a)
of the Texa s Cod e of Criminal Proce dure pro vides that the sex off end e r regis tr at ion stat ute applies to certain “reporta ble conv iction[ s ] or adjudic a tion[s]. ” A “reportable convict ion or ad jud ic ation” me ans a convi ction or adjudication for, among other things, trafficking of persons

. T EX

. C ODE C RI M

. P ROC . a rt.
62.001 (5 )(K)

. A d e fe nd ant wit h a “ re portable conv i ction ” is r equired to register a s

a se x o ffe nd er. Id

. a

rt. 62.05 1(a); C rabtree v. State , 389 S.W.3d 820, 825 (Tex. Crim. App. 2012). “ When a person is convicted of an offense f or which regis tration fo r a sex of f ense is req ui re d under chapter 62, the judg m ent must
i nclude (1) a statement that the re gi strati on requireme nts of that chapter apply to
the defendan t and (2) a statement of the a ge of the victim. ” Palmer v. State , No.
0 5

- 19

- 01135

- CR, 2021 WL 1 049870, at *8 (Tex. Ap p.

— D allas Ma r. 19, 2021, no pet. ) (mem. op. , not designated for p ublica tio n ) ; T EX

. C ODE C RIM

. P R OC

. art . 42.01 § 1(27).68

“An appellate cou rt has the power t o c orrect and reform a trial court judgme nt ‘to make t he record spea k the trut h when it ha s the neces sa ry data a nd
info rmation to do so.
. . .’ ” Tyler v. State , 137 S. W.3d 2 61, 26 7

– 68 (Te x. App.

— H ouston [1s t Dist.] 2004, no pet.) ( quotin g Nolan v. State , 39 S.W. 3d 697, 698 (Tex. App.

— Houston [1st Dist.] 2001, n o p et.) ) ; se e also Shu mate v. Sta te , 649
S.W .3 d 240, 244 (T ex. App

. — Dallas 2021 , no pet .) ( “ An appellate court h as the

au tho ri ty to mod ify an incorrect judgment to make the record s peak the truth when
it ha s the necessary information to do s o. ” ) (citing T E X

. R. A P P

. P. 43.2(b) ; Bigley

v. S tate , 865 S .W

. 2d 26, 27

– 28 (Te x. Crim. App. 1993 ) ) ; Lourenco v. State , No

. 05

– 13

– 010 92

– CR , 2015 WL 356429, at *10 (Tex. App.

–– Dallas Jan. 28, 2015 , no
pe t.) (mem. op., not designated for p ublication) (mo d if ying judg ments to r eflec t applic ability of sex o ffender reg is tr ation require m ents and age of victim )

. We note that even though the S tat e d id not a sse rt a c ross
- point on appeal with respect to the

sex
- offender registratio n, we have the authority to modify incorrect judgm e n t s sua

s po nte when w e have s uff ic ient info rm at ion. See A sberry v. State , 813 S.W.2d 526, 529

– 30 (Tex. App.

–– Dallas 19 91, p et. re f ’ d ) ( “ Th e authorit y of an appellate
court to refo rm incorrect judgments i s not dependent upon the request of any party,

nor do es it tur n on the q uestion of w h ether a pa rt y has or has not ob jected in the
trial co urt. ”).69

We agree with Mi lton that the judgments shou ld be reformed with respect to
the firs t enhancement paragraph s and the concurrent n at ure of the sen tences

. W e modify the ju dg ment s to r eflect a fin ding on the e nh ancement par ag raph s of “ N/ A ”
ins tead of “ pleaded true ” and “ found true, ” and to state that t he senten ces are to run

co ncurren tly

. I n addition, g iven our holding that the e videnc e i s sufficien t to support the conviction s in the c hallenged ca se , we modi fy t he judgment s on our

o wn motion to refl e ct that the s ex offender registration requireme nts of Chapter 6 2 apply , and tha t the v ictim wa s fi f teen ye a rs old at the time of the offens e
. Se e
Zam arron v. State , No. 05

- 19

- 00632

- CR, 2020 WL 6280869, at * 5 (Tex

. Ap p.

— Dall as Oct. 27, 2020, pet. ref’ d ) (m em. op., not designated for publi c ati on) ( sua
sp o nt e modifying judg me nt to indi cate defendan t was required to register as sex of fender ) ; R uiz v
. Stat e , No. 05

- 12

- 01703

- CR , 2014 WL 2993820, at *12 (Tex. App.

— Dallas J un e 30, 2014, no pet.) (mem. op., not des ignated for publication) (same).
We sustain Milton ’ s first issue.
C o nc lusion
W e affirm the t r i al court ’s judgm en t s , as r efor med

.70 V eronic a R ivas

- Molloy Ju stice

P anel c ons ist s of Jus tic e s Goodm an , R iva s
- M olloy , and Guerra

. P ublish. T EX

. R. A PP

. P. 47.2(b).