Richard Francis Rodrigues v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2021
• Docket: 09-19-00414-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00414-CR __________________

RICHARD FRANCIS RODRIGUES, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 19-339023 __________________________________________________________________

MEMORANDUM OPINION

Appellant Richard Francis Rodrigues appeals his conviction for prostitution.

In two issues, Rodrigues argues that the evidence is insufficient to support his

conviction due to a variance between the information and the proof at trial and that

the prosecutor’s improper closing argument requires reversal. We affirm the trial

court’s judgment.

1 THE EVIDENCE

The State charged Rodrigues with prostitution, alleging that Rodrigues “for a

fee, did knowingly offer or agree to engage in sexual conduct with [an undercover

officer.]” The undercover officer, a sergeant of the Organized Crime Unit for the

Montgomery County Sheriff’s Office, testified that she works undercover while

conducting proactive investigations regarding prostitution. The undercover officer

testified that on February 12, 2019, she was working at a hotel when she posted an

online ad in which she stated that she was willing to engage in sexual activity, and

the ad included partially nude pictures of females in explicit poses. The undercover

officer explained that she engaged in a text conversation with Rodrigues, and the

text conversation was admitted into evidence. The undercover officer testified that

Rodrigues started the conversation by asking if she would be available that day and

what her “donation” would be for an hour. According to the undercover officer’s

training and experience, the use of the word “donation” in prostitution cases refers

to the rate, and the term is used to “skirt the law or try to say it was just a donation[.]”

The undercover officer testified that she responded with an amount, and Rodrigues

texted that he could see her around 4:00 and that he hoped she was not a cop. The

undercover officer explained that after she told Rodrigues she was not a cop, he

asked for the address.

2 The undercover officer testified that she directed Rodrigues to a hotel room

that was set up with video and audio surveillance, and the video of Rodrigues’s arrest

was admitted into evidence. The undercover officer explained that Rodrigues came

into the hotel room and told her that he wanted an hour of her time, and Rodrigues

stated that he wanted “everything.” According to the undercover officer, normally

when a person wants “everything, it means sex and a blow job.” The undercover

officer testified that Rodrigues indicated that he wanted to have normal sex and a

blow job, and Rodrigues laid the money down on the table and said, “[t]his is for

you.” The undercover officer explained that based on her training and experience,

the totality of the text messages and the conversation that she had with Rodrigues in

the room, and Rodrigues showing her the money she requested, she knew that

Rodrigues was offering her money for sex and a blow job.

Rodrigues testified that after having a bad day at work, he called a colleague

because he needed someone to talk to, and the colleague gave him the link to a

website with personal ads. According to Rodrigues, he only wanted to have a

conversation and never intended to engage in sexual relations. Rodrigues explained

that the donation was “money for her time[]” just to talk and not for sex acts.

Rodrigues testified that he asked if the woman was a cop because he just wanted to

talk to a normal person and “didn’t want any trouble[.]” According to Rodrigues, he

was not interested in sex and did not commit the offense, but the undercover officer

3 was “very pushy[]” and made him say the things that she wanted to hear. Rodrigues

admitted telling the undercover officer that he wanted sex and agreeing to a blow

job, but he claimed that he just played along because he was worried that she would

ask him to leave without having a chance to talk. Rodrigues also testified that he

never told the undercover officer that he just wanted to talk. The jury found

Rodrigues guilty of prostitution as charged in the information. The trial court

assessed punishment at two days in county jail and also assessed a $1500 fine.

ANALYSIS

In issue one, Rodrigues argues that the evidence is insufficient to support his

conviction because there is a fatal variance between the language in the information

and the evidence presented at trial. According to Rodrigues, the information alleged

an offense under section 43.02(a) of the Texas Penal Code, but the evidence

established an offense under section 43.02(b). See Tex. Penal Code Ann. § 43.02(a),

(b). The State argues that Rodrigues waived any complaint about a defect in the

amended information and that the evidence is legally sufficient because it supports

at least one manner of committing prostitution as alleged in the amended

information.

Under a legal sufficiency standard, we assess all the evidence in the light most

favorable to the prosecution to determine whether any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

4 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). We give deference to the jury’s responsibility to fairly resolve conflicting

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Hooper, 214 S.W.3d at 13. The sufficiency of the evidence should

be measured by the elements of the offense as defined by a hypothetically correct

jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). A hypothetically correct jury charge accurately sets out the law, is authorized

by the indictment, does not unnecessarily increase the State’s burden of proof or

restrict its theories of liability, and adequately describes the offense for which the

defendant was tried. Id.

If the penal offense sets out various statutory alternatives for the distinct

elements of the crime, the sufficiency of the evidence is measured by the specific

alternative elements that the State has alleged in the information. See Cada v. State,

334 S.W.3d 766, 773-74 (Tex. Crim. App. 2011). When a jury returns a general

verdict on an information charging alternative methods of committing the same

offense, the verdict stands “if the evidence is sufficient to support a finding under

any of the theories submitted.” Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.

App. 1991).

A variance occurs when there is a discrepancy between the allegations in the

indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 (Tex.

5 Crim. App. 2011). In conducting an evidentiary-sufficiency analysis, we consider

two types of variances: material and immaterial. Thomas v. State, 444 S.W.3d 4, 9

(Tex. Crim. App. 2014). Because immaterial variances do not affect the validity of

a criminal prosecution, a hypothetically correct jury charge need not incorporate

allegations that give rise to only immaterial variances. Id. A variance is fatal when

it is a material variance that prejudices the substantial rights of the defendant.

Gollihar v. State, 46 S.W.3d 243, 247-48 (Tex. Crim. App. 2001). In determining

whether a variance is material, we examine whether the indictment informed the

defendant of the charge against him sufficiently to allow him to prepare an adequate

defense at trial and whether the indictment would subject him to the risk of being

prosecuted later for the same crime. See Gollihar, 46 S.W.3d at 258. When arguing

variance, the burden of demonstrating surprise or prejudice rests with the defendant.

Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).

A person commits the offense of prostitution if he knowingly offers or agrees

to receive a fee from another to engage in sexual conduct. Tex. Penal Code Ann. §

43.02(a). Under section 43.02(b), a person commits the offense if the person

knowingly offers or agrees to pay a fee to another person for the purpose of engaging

in sexual conduct with that person or another. Id. § 43.02(b). The State initially

charged Rodrigues by information with prostitution, alleging that Rodrigues “did

then and there knowingly solicit [the undercover officer], in a public place . . . to

6 engage with the defendant in sexual conduct, to-wit: sexual intercourse or sexual

contact, for hire.[]” After the trial court granted the State’s motion to amend the

information, the State amended the information and alleged that Rodrigues, “for a

fee, did knowingly offer or agree to engage in sexual conduct with [the undercover

officer.]”

There are two alternative means for committing prostitution: offering to

receive money to engage in sexual conduct or offering to pay money to engage in

sexual conduct. See Tex. Penal Code Ann. § 43.02(a), (b). Although the amended

information did not specify in which manner Rodrigues committed prostitution, the

language in the amended information charges Rodrigues with both alternatives. The

jury charge instructed that a person commits the offense of prostitution if the person

knowingly agrees to engage in sexual conduct for a fee, and the charge defined “fee”

as “the payment or offer of payment in the form of money, goods, services, or other

benefit.” The jury charge instructed the jury that if it found from the evidence beyond

a reasonable doubt that Rodrigues “did knowingly offer or agree to engage in sexual

conduct, namely sexual intercourse or deviate sexual intercourse, with [the

undercover officer] for a fee, you will find [Rodrigues] guilty of the offense of

Prostitution, as charged.”

Viewing the evidence in the light most favorable to the prosecution, we

conclude that a rational jury could have found Rodrigues guilty of prostitution

7 beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at

13. We also conclude that there is no material variance between the statutory

allegations in the amended information and the proof at trial. See Byrd, 336 S.W.3d

at 246. Additionally, even assuming that there was a variance, we conclude that any

alleged variance was not prejudicial to Rodrigues’s substantial rights and was,

therefore, immaterial, because Rodrigues does not contend that the amended

information led to an inability to defend against the charge or indicate how the

alleged variance could subject him to the risk of being prosecuted for the same

offense. See Gollihar, 46 S.W.3d at 247-48. We conclude that the evidence is legally

sufficient to support the verdict. We overrule issue one.

In issue two, Rodrigues complains that the prosecutor’s improper closing

argument requires reversal. The State argues that the trial court’s curative instruction

to disregard was sufficient to cure any prejudice from the first of the prosecutor’s

two allegedly improper arguments, and that the second challenged argument

regarding an entrapment instruction was proper.

We review the trial court’s ruling on an objection to allegedly improper jury

argument for an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex.

Crim. App. 2004). “[P]roper jury argument generally falls within one of four general

areas: (1) summation of the evidence; (2) reasonable deduction from the evidence;

(3) answer to argument of opposing counsel; and (4) plea for law enforcement.”

8 Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “To constitute

reversible error, the argument must be manifestly improper or inject new, harmful

facts into the case.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000).

If a trial court sustains an objection to improper jury argument, to preserve

error on appeal, the complaining party must additionally request an instruction to

disregard an offending argument if such an instruction could cure the prejudice. See

McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice

arising from an erroneous jury argument is incurable, the complaining party must

move for a mistrial. Id. We review the trial court’s denial of a motion for mistrial for

an abuse of discretion, viewing the evidence in the light most favorable to the trial

court’s ruling, and considering only those arguments before the trial court at the time

of the ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must

uphold the ruling if it was within the zone of reasonable disagreement. Id. In

evaluating whether a trial court abused its discretion by denying a defendant’s

request for a mistrial based on improper jury argument, appellate courts must

balance several factors, including “(1) the severity of the misconduct (the magnitude

of the prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to

cure the misconduct (the efficacy of any cautionary instruction by the judge), and

(3) the certainty of conviction absent the misconduct (the strength of the evidence

9 supporting the conviction).” Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.

2011).

A mistrial is the appropriate remedy when the objected-to events are so

emotionally inflammatory that curative instructions are not likely to prevent the jury

from being unfairly prejudiced against the defendant. Young v. State, 137 S.W.3d

65, 71 (Tex. Crim. App. 2004). A mistrial is required only in extreme circumstances

when the prejudice is incurable because it “is of such character as to suggest the

impossibility of withdrawing the impression produced on the minds of the jurors.”

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Because a mistrial is an

extreme remedy, “a mistrial should be granted ‘only when residual prejudice

remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884-85

(quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).

The record shows that during closing argument, the prosecutor argued that

the “entrapment defense would not be in your charge if this Court did not believe

that he’s confessed to that.” Rodrigues objected to the argument as being a

misstatement of the law, and the trial court sustained Rodrigues’s objection. The trial

court also instructed the jury to disregard the prosecutor’s last statement but denied

Rodrigues’s motion for mistrial. The trial court’s instruction suggests that the trial

court believed the prosecutor’s argument was improper but that the prejudicial effect

of the argument could be cured.

10 We presume the jury followed the court’s instruction to disregard the

complained-of argument. See id.; Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.

App. 2005); Ladd, 3 S.W.3d at 567 (concluding that trial court did not abuse its

discretion because it could have reasonably concluded that its instruction to

disregard was sufficient to cure any harm). Here, the prejudicial effect of the

prosecutor’s argument did not likely cause the jury to ignore the trial court’s

instruction. See Archie, 340 S.W.3d at 739. Moreover, the evidence showing that

Rodrigues committed the offense was strong. See id. Having considered the entire

record, we conclude that the trial court’s denial of the motion for mistrial did not

constitute an abuse of discretion. See id.; Ocon, 284 S.W.3d at 884.

Rodrigues also complains that the trial court abused its discretion by

overruling his objection to the prosecutor’s alleged improper statement regarding the

law on inclusion of the entrapment defense. During closing, the prosecutor argued

that “[t]he law is very clear that if a defendant denies committing the offense, that

he does not get the charge in . . . . You heard him on the stand admit to it.” Rodrigues

objected that the prosecutor’s statement was a misstatement of the law, and the trial

court overruled the objection. The trial court also denied Rodrigues’s request for a

mistrial. On appeal, Rodrigues argues that he never confessed, and it was not a

reasonable deduction from the evidence for the prosecutor to argue that he had.

11 If the defendant denies that he committed the offense, he will not be entitled

to an entrapment instruction. Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim. App.

1986). While the defendant is not required to plead guilty, he cannot introduce

positive evidence that he did not commit the act, because entrapment assumes that

the offense was committed. Barnes v. State, 70 S.W.3d 294, 306 (Tex. App.—Fort

Worth 2002, pet. ref’d). Rodrigues was required to admit to committing the charged

offense before he could assert the defense of entrapment, but such an admission is

no more than an admission that the event occurred and does not rise to the level of a

plea of guilty. See Collins v. State, 672 S.W.2d 588, 594 (Tex. App.—Fort Worth

1984, no pet.). The record shows that the trial court granted Rodrigues’s request for

an instruction on the entrapment defense, because based on Rodrigues’s testimony,

the trial court found that Rodrigues admitted the offense. See also Garrett v. State,

639 S.W.2d 18, 22 (Tex. App.—Fort Worth 1982) aff’d on other grounds, 658

S.W.2d 592 (Tex. Crim. App. 1983) (noting appellant’s implied admission of guilt

by his stipulation of the entrapment defense).

Proper closing argument includes correct legal arguments. Vasquez v. State,

484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We conclude

that the prosecutor’s argument was permissible because it was not a misstatement of

the law to argue that Rodrigues admitted that he committed the offense and that if a

defendant denies committing the offense, he is not entitled to an entrapment

12 instruction. See Melton, 713 S.W.2d at 112. Additionally, even if the trial court erred

by overruling Rodrigues’s objection, Rodrigues has not demonstrated that the error

affected his substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998). “A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). On this record,

we cannot conclude that the complained-of argument had a substantial and injurious

effect or influence upon the jury in determining its verdict. See id. Accordingly, we

overrule issue two. Having overruled each of Rodrigues’s issues, we affirm the trial

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on February 18, 2021 Opinion Delivered April 14, 2021 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.