                                                                          PD-1661-15
                                                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
December 21, 2015                                      Transmitted 12/21/2015 1:14:21 PM
                                                         Accepted 12/21/2015 2:20:37 PM
                                                                          ABEL ACOSTA
                             NO. ___________                                      CLERK

                    IN THE COURT OF CRIMINAL APPEALS

                         FOR THE STATE OF TEXAS

     _____________________________________________________________

                          ROBERT FRANCIS RITZ,
                              PETITIONER

                                   VS.

                        THE STATE OF TEXAS,
                             RESPONDENT
     _____________________________________________________________


         APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

           OF THE DECISION IN THE THIRD COURT OF APPEALS

                         CAUSE NO. 03-14-00403-CR

     _____________________________________________________________

                                     LINDA ICENHAUER-RAMIREZ
                                     ATTORNEY AT LAW
                                     1103 NUECES
                                     AUSTIN, TEXAS 78701
                                     TELEPHONE: 512-477-7991
                                     FACSIMILE: 512-477-3580
                                     LJIR@AOL.COM
                                     SBN: 10382944

                                     ATTORNEY FOR PETITIONER


             ORAL ARGUMENT IS RESPECTFULLY REQUESTED
                                   TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................3

STATEMENT REGARDING ORAL ARGUMENT...............................5

IDENTITY OF JUDGE, PARTIES AND COUNSEL.............................6

STATEMENT OF THE CASE.................................................................7

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE....8

GROUND FOR REVIEW NUMBER ONE.............................................9
    THE COURT OF APPEALS ERRED IN FINDING THAT
    THE EVIDENCE WAS SUFFICIENT TO PROVE THAT
    PETITIONER “TRAFFICKED” THE ALLEGED VICTIM
    AS INTENDED BY THE STATUTE.

         ARGUMENT..................................................................................9

GROUND FOR REVIEW NUMBER TWO............................................ 9
    THE COURT OF APPEALS ERRED IN FINDING THAT
    THE APPLICATION OF THE PLAIN LANGUAGE OF
    V.T.C.A. PENAL CODE, SEC. 20A.01(4) DID NOT LEAD
    TO AN ABSURD CONSEQUENCE THAT THE
    LEGISLATURE COULD NOT HAVE INTENDED.

         ARGUMENT..................................................................................9

PRAYER FOR RELIEF ...........................................................................15

CERTIFICATE OF COMPLIANCE........................................................15

CERTIFICATE OF SERVICE .................................................................16

APPENDIX...............................................................................................17

       Ritz v. State, 2015 Tex.App.LEXIS 11994, No. 03-14-00403-CR,
       Tex.App.-Austin, delivered November 24, 2015)



	                                                   2	  
                                      INDEX OF AUTHORITIES

CASES                                                                                                           PAGES

Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App. 1991) ...............................11

Delay v. State, 443 S.W.3d 909, 912 (Tex.Cr.App. 2014) .........................10

Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App. 1980)..........................11

Ritz v. State, 2015 Tex.App.LEXIS 11994, No. 03-14-00403-CR,
       Tex.App.-Austin, delivered November 24, 2015) ..........................8, 9

Williams v. State, 235 S.W.3d 742, 750 (Tex.Cr.App. 2007) ....................10



STATUTES

V.T.C.A. Government Code, Sec. 311.011 ............................................... 11

V.T.C.A. Penal Code, Sec. 20A.01(4) ................................................. 10, 11

V.T.C.A. Penal Code, Sec. 20A.02.................................................. 9, 10, 11

V.T.C.A. Penal Code, Sec. 20A.02(b)(1) ................................................. 14

V.T.C.A. Penal Code, Sec. Sec. 20A.03.................................................... 10

V.T.C.A. Penal Code, Sec. 20A.03(e) ....................................................... 14

V.T.C.A.	  Penal	  Code,	  Sec.	  21.11(d).........................................................................13

V.T.C.A.	  Penal	  Code,	  Sec.	  22.011(f) .......................................................................13	  

V.T.C.A.	  Penal	  Code,	  Sec.	  22.021(e) ......................................................................13	  
	  




	                                                            3	  
BILL ANALYSIS

Author’s/	  Sponsor's	  Statement	  of	  Intent,	  Bill	  Analysis,	  SB	  24,	  82nd	  
     Regular	  Session ................................................................................................12	  



COURT RULES

Tex.R.App.Proc. 66.3(b)............................................................................ 13

Tex.R.App.Proc. 66.3(c) ............................................................................ 13

Tex.R.App.Proc. 66.3(d)............................................................................ 10

Tex.R.App.Proc. 66.3(f) ............................................................................ 14




	                                                            4	  
           STATEMENT REGARDING ORAL ARGUMENT

       Petitioner has raised important questions of first impression in this

Court and believes that oral argument would help clarify the issues presented

in his petition for discretionary review. Therefore he respectfully requests

oral argument.




	                                   5	  
                      IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Judge: The Honorable Jack H. Robison, 22nd Judicial District Court
                of Hays County, Texas

Parties and Counsel:

                              (a) the	  State	  of	  Texas	  represented	  by:	  
                             	  
                                                                Mr.	  Brian	  Erskine,	  Asst.	  District	  Attorney	  	  
                                                                Mr.	  Gerard	  Perches,	  Asst.	  District	  Attorney	  	  
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  Hays	  County	  Criminal	  District	  Attorneys	  Office	  
                                                                712	  South	  Stagecoach	  Trail,	  Suite	  2057	  
                                                                San	  Marcos,	  Texas	  78666	  
                                                                	  
                              (b) Mr.	  Robert	  Francis	  Ritz,	  represented	  by:	  
                                                                     	  
                                                                Ms.	  Barrett	  Hansen	  –	  trial	  attorney	  
                                                                Attorney	  at	  Law	  
                                                                P.O.	  Box	  429	  
                                                                Cedar	  Creek,	  Texas	  78612	  
                                                                          	  
                                                                Ms.	  S.	  Lynn	  Peach	  –	  trial	  attorney	  
                                                                Attorney	  at	  Law	  
                                                                P.O.	  Box	  512	  
                                                                San	  Marcos,	  Texas	  78667	  
	  
                                                                Ms.	  Linda	  Icenhauer-­‐Ramirez	  -­‐	  appellate	  attorney	  
                                                                Attorney	  at	  Law	  
                                                                1103	  Nueces	  
                                                                Austin,	  Texas	  78701	  
                                                                                                 	  




	                                                                                6	  
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

       NOW COMES Robert Francis Ritz, Petitioner in this cause by and

through his attorney, Linda Icenhauer-Ramirez, and, pursuant to the

provisions of Tex.R.App.Proc. 66, et seq., moves this Court to grant

discretionary review, and in support will show as follows:

                      STATEMENT OF THE CASE

       Petitioner was indicted in this cause for one count of continuous

sexual abuse of a child and one count of continuous trafficking of persons on

March 20, 2013. (C.R. 13-14) On May 13, 2014, after hearing the evidence

and argument of both the State and the defense, the jury found Petitioner

guilty of the offense of continuous trafficking of persons. (R.R. VI, pp. 157-

158; C.R. 163-173)      On May 14, 2014, after hearing the evidence and

argument from counsel, the jury assessed Petitioner’s punishment at life

imprisonment. Petitioner was sentenced that day.        (R.R. VII, pp. 74-75;

C.R. 177-179)

       Petitioner filed a motion for new trial on June 5, 2014. (C.R. 183-

188) Notice of appeal was filed on June 19, 2014. (C.R. 191-192)           The

trial court’s certification of defendant’s right to appeal was filed on May 14,

2014. (C.R. 182)



	                                    7	  
          STATEMENT OF THE PROCEDURAL HISTORY

       On November 24, 2015, the Third Court of Appeals handed down an

opinion in this case. Ritz v. State, 2015 Tex.App. LEXIS 11994, No. 03-14-

00403-CR, Tex.App.-Austin, delivered November 24, 2015). No motion for

rehearing was filed. The petition for discretionary review is due to be filed

on or before December 24, 2015.




	                                   8	  
          GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED IN FINDING THAT THE
EVIDENCE WAS SUFFICIENT TO PROVE THAT PETITIONER
“TRAFFICKED” THE ALLEGED VICTIM AS INTENDED BY THE
STATUTE.

          GROUND FOR REVIEW NUMBER TWO
THE COURT OF APPEALS ERRED IN FINDING THAT THE
APPLICATION OF THE PLAIN LANGUAGE OF V.T.C.A. PENAL
CODE, SEC. 20A.01(4) DID NOT LEAD TO AN ABSURD
CONSEQUENCE THAT THE LEGISLATURE COULD NOT HAVE
INTENDED.

       In its opinion, the Third Court of Appeals found the evidence

sufficient to support Petitioner’s conviction for continuous trafficking of

persons under V.T.C.A. Penal Code, Sec. 20A.02, while acknowledging that

this cases raises serious questions:

        “We agree that Ritz’s conduct, however reprehensible it may
       have been, does not constitute what would ordinarily be
       considered ‘human trafficking’ because there were no
       allegations in this case of organized crime, prostitution or
       forced labor. In addition, Ritz may be correct that the plain
       language of this statute is so broad that nearly every adult who
       has sex with a minor may now be prosecuted as a human
       trafficker.” Ritz v. State, 2015 Tex.App.LEXIS 11994 at *6

Petitioner asserts that the Court of Appeals erred in finding the evidence

sufficient to support his conviction for continuous trafficking of persons

because the evidence merely showed that he transported the single victim a

distance of approximately eight miles for the sole purpose of engaging in

sexual acts with her. The child was not provided to other perpetrators, was

	                                     9	  
not prostituted out – this was one defendant engaging in illegal sexual acts

with one minor. Petitioner asserts that review in this case should be granted

because the Third Court of Appeals has misconstrued the trafficking statutes

– V.T.C.A. Penal Code, Secs. 20A.01(4), Sec. 20A.02 and Sec. 20A.03.

Tex.R.App.Proc. 66.3(d).

         In Delay v. State, 443 S.W.3d 909, 912 (Tex.Cr.App. 2014), the Court

of Criminal Appeals wrote:

         “ . . . sometimes appellate review of legal sufficiency involves
         simply construing the reach of the applicable penal provision in
         order to decide whether the evidence, even when viewed in the
         light most favorable to conviction, actually establishes a
         violation of the law.”

In Williams v. State, 235 S.W.3d 742, 750 (Tex.Cr.App. 2007), the Court

wrote:

         “[i]f the evidence establishes precisely what the State has
         alleged, but the acts that the State has alleged do not constitute
         a criminal offense under the totality of the circumstances, then
         that evidence, as a matter of law, cannot support a conviction.”

The Court of Appeals was correct that the evidence was sufficient to show

the acts alleged in the indictment. However, Petitioner would ask the Court

of Criminal Appeals to speak to the question of whether his conduct of

transporting the child a few miles in his personal car for the purpose of

having a sexual relationship with the victim constituted the offense of

“trafficking” as the legislature intended?       Petitioner would assert that when

	                                      10	  
the legislature enacted the crime of “trafficking of persons” in V.T.C.A.

Penal Code, Sec. 20A.02, it did not envision a person in Petitioner’s

circumstances being prosecuted for the crime of trafficking of persons or

continuous trafficking of person.

       V.T.C.A. Penal Code, Sec. 20A.01(4) defines “traffic” as follows:

       “’Traffic’ means to transport, entice, recruit, harbor, provide, or
       otherwise obtain another person by any means.”

Petitioner acknowledges that words should be given their common meaning

in construing legislation.                 V.T.C.A. Government Code, Sec. 311.011.

However, there are two exceptions to this rule.                           The first is when there is

ambiguous language in the statute.                            Boykin v. State, 818 S.W.2d 782

(Tex.Cr.App. 1991). The second is when the application of the “[s]tatute’s

plain language would lead to absurd consequences that the Legislature could

not possibly have intended, we should not apply the language literally.”

Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App. 1980). Petitioner asserts

that those two exceptions should be applied in his case.

       The object of the Texas trafficking of persons law was to establish a

set of prohibitions and penalties to deal with the conduct of individuals who

participate in the modern-day slave trade.

       	  	  “Human	  trafficking	  is	  the	  illegal	  trade	  of	  human	  beings	  and	  
       is	   a	   modern-­‐day	   form	   of	   slavery.	   Human	   trafficking	   is	   a	  
       criminal	   enterprise	   frequently	   cited	   as	   the	   second-­‐largest	  

	                                                   11	  
          criminal	   industry	   in	   the	   world.	   In	   Texas,	   the	   Houston	   and	  
          Dallas	  Innocence	  Lost	  operations	  run	  by	  the	  Federal	  Bureau	  
          of	   Investigation,	   the	   United	   States	   Department	   of	   Justice,	  
          and	  the	  National	  Center	  for	  Missing	  and	  Exploited	  Children	  
          successfully	   rescued	   more	   than	   109	   children	   from	  
          traffickers	   in	   fiscal	   year	   2010.	   .	   .	   S.B.	   24	   seeks	   to	   enact	  
          legislative	  changes	  included	  in	  the	  task	  force	  report,	  such	  as	  
          creating	   separate	   definitions	   for	   sex	   trafficking	   and	   labor	  
          trafficking.	   .	   .	   .	   	   S.B.	   24	   amends	   current	   law	   relating	   to	   the	  
          prosecution,	   punishment,	   and	   certain	   criminal	   and	   civil	  
          consequences	   of	   offenses	   involving	   or	   related	   to	   the	  
          trafficking	  of	  persons	  and	  to	  certain	  protections	  for	  victims	  
          of	   those	   offenses.”	   	   	   See	   	   Author’s/	   Sponsor's	   Statement	   of	  
          Intent,	  Bill	  Analysis,	  SB	  24,	  82nd	  Regular	  Session.	  	  	  	  
          	  
If	   the	   decision	   of	   the	   Court	   of	   Appeals	   is	   allowed	   to	   stand	   and	  

Petitioner’s	   conviction	   is	   affirmed,	   then	   anytime	   a	   sexual	   predator	  

moves	   a	   child	   any	   distance	   during	   the	   commission	   of	   a	   sexual	   offense,	  

he	   has	   now	   “trafficked”	   the	   child	   and	   can	   be	   prosecuted	   under	   the	  

trafficking	   statutes.	   	   	   Thus	   if	   a	   person	   moves	   a	   child	   from	   room	   to	   room,	  

from	   bed	   to	   floor,	   one	   foot,	   two	   miles	   –	   all	   could	   be	   construed	   to	   be	  

“trafficking”	   under	   the	   statute.	   	   	   Thus	   a	   person,	   like	   Petitioner	   who	  

commits	   the	   offenses	   of	   aggravated	   sexual	   assault	   of	   a	   child	   (a	   first	  

degree	   felony	   with	   a	   punishment	   range	   of	   five	   to	   ninety-­‐nine	   years	   or	  

life),	  sexual	  assault	  of	  a	  child	  (a	  second	  degree	  felony	  with	  a	  punishment	  

range	   of	   two	   to	   twenty	   years)	   or	   indecency	   by	   contact	   (a	   second	   degree	  

felony	   with	   a	   punishment	   range	   of	   two	   to	   twenty	   years)	   can	   now	   be	  



	                                                             12	  
prosecuted	  under	  a	  scenario	  where	  the	  punishment	  range	  is	  raised	  to	  a	  

minimum	   sentence	   of	   twenty-­‐five	   years	   and	   a	   maximum	   of	   life	  

imprisonment.	  	  	  	  This	  basically	  nullifies	  the	  punishment	  ranges	  set	  out	  in	  

those	   particular	   statutes	   –	   aggravated	   sexual	   assault	   (V.T.C.A.	   Penal	  

Code,	   Sec.	   22.021(e)),	   sexual	   assault	   (V.T.C.A.	   Penal	   Code,	   Sec.	  

22.011(f)),	   indecency	   with	   a	   child	   by	   contact	   (V.T.C.A.	   Penal	   Code,	   Sec.	  

21.11(d)).	   	   	   Petitioner	   asserts	   that	   had	   the	   legislature	   intended	   this	  

absurd	  result,	  it	  would	  have	  amended	  the	  punishment	  ranges	  set	  out	  in	  

those	  specific	  statutes.	  

	     The	   Court	   of	   Criminal	   Appeals	   needs	   to	   speak	   to	   this	   issue.	  	  	  

Tex.R.App.Proc. 66.3(c). What did the legislature intend when it wrote the

trafficking statutes?	  	  	  Review should be granted because	  the Third Court of

Appeals has decided an important question of state law that has not been, but

should be, settled by the Court of Criminal Appeals.                                    Tex.R.App. Proc.

66.3(b).	  

         If the decision of the Third Court of Appeals is left standing, this case

will have far-reaching impact.                     No longer will prosecutors be content to

prosecute offenders under the regular statutes that define sexual offenses

against children where punishments follow the standard punishment ranges.

Now all sexual offenses against children can be either prosecuted for


	                                                     13	  
trafficking of persons as first degree felonies under V.T.C.A. Penal Code,

Sec. 20A.02(b)(1) or as continuous trafficking of persons with a punishment

range of twenty-five years to ninety-nine years or life under V.T.C.A. Penal

Code, Sec. 20A.03(e).      Due to the far-reaching effect of this decision,

review is proper because the Third Court of Appeals has so far departed

from the accepted and usual course of judicial proceedings as to call for an

exercise of the Court of Criminal Appeals’ power of supervision.

Tex.R.App.Proc. 66.3(f). As such, review is not only proper, it is necessary.

These grounds for review should be granted.




	                                   14	  
                          PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Honorable Court grant Appellant’s Petition for Discretionary

Review, and after full briefing on the merits, issue an opinion reversing the

decision of the Court of Appeals.

                                        Respectfully submitted,

                                        /s/ Linda Icenhauer-Ramirez
                                        LINDA ICENHAUER-RAMIREZ
                                        ATTORNEY AT LAW
                                        1103 NUECES
                                        AUSTIN, TEXAS 78701
                                        TELEPHONE: 512-477-7991
                                        FACSIMILE: 512-477-3580
                                        ljir@aol.com
                                        SBN: 10382944

                                        ATTORNEY FOR PETITIONER



                   CERTIFICATE OF COMPLIANCE

       I hereby certify that excluding the following: caption, identity of

parties and counsel, statement regarding oral argument, table of contents,

index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix, this petition

for discretionary review contains 2,124 words, as calculated by the word



	                                    15	  
count function on my computer and is prepared in Times New Roman 14

point font.

                                      /s/ Linda Icenhauer-Ramirez
                                      LINDA ICENHAUER-RAMIREZ



                     CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of Petition for

Discretionary Review was e-served to the office of the State Prosecuting

Attorney and e-served to Mr. Brian Erskine of the Hays County District

Attorneys Office on this 21st day of December, 2015.


                                      /s/ Linda Icenhauer-Ramirez
                                      LINDA ICENHAUER-RAMIREZ




	                                  16	  
                              APPENDIX


 Ritz v. State, 2015 Tex.App.LEXIS 11994, No. 03-14-00403-CR, Tex.App.-
                     Austin, delivered November 24, 2015)




	                                17	  
                                    2015 Tex. App. LEXIS 11994, *

                    Robert Francis Ritz, Appellant v. The State of Texas, Appellee

                                        NO. 03-14-00403-CR

                      COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

                                     2015 Tex. App. LEXIS 11994


                                      November 24, 2015, Filed

NOTICE: PUBLISH.

PRIOR HISTORY: [*1] FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT.
NO. CR-13-0253, HONORABLE JACK H. ROBISON, JUDGE PRESIDING.

DISPOSITION: Affirmed.

CASE SUMMARY:



OVERVIEW: HOLDINGS: [1]-The evidence was sufficient to support defendant's conviction of
continuous trafficking of persons under Tex. Penal Code Ann. § 20A.03 where the victim testified
that on multiple occasions defendant drover her 20 or 25 minutes in order to have sex with her at
his home, their sexual relationship lasted more than 30 days, a friend saw her have sex with
defendant, text messages between them were of a sexual nature, and the victim was 14 years old
throughout the relationship; [2]-Even though the trial court erred by instructing the jury that
defendant would not be eligible for parole, the error was not egregious because it worked in
defendant's favor as it would, if anything, encourage the jury to decrease his sentence.

OUTCOME: Judgment affirmed.



CORE TERMS: trafficking, sexual, sentence, parole, sex, adult, continuous, eligible, enumerated,
sexual relationship, sexual assault, transported, trafficked, favorable, indecency, egregious, sexual
offenses, plain language, exploitation, transport, calendar, messages, traffic, viewing, absurd,
felony, inmate, parole law, person commits, insufficient to support



LEXISNEXIS(R) HEADNOTES
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of
Evidence
HN1 In reviewing whether the evidence is sufficient to support a conviction, an appellate court
      must view the evidence in the light most favorable to the verdict and determine whether
      any rational trier of fact could have found each essential element of the offense beyond a
      reasonable doubt.

Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > Abuse of Children
HN2 The Texas Penal Code provides that a person commits continuous trafficking of persons if,
      during a period that is 30 or more days in duration, the person engages two or more times
        in conduct that constitutes an offense under Tex. Penal Code Ann. § 20A.02 (trafficking of
        persons) against one or more victims. Tex. Penal Code Ann. § 20A.03(a). A person
        commits trafficking of persons if the person knowingly traffics a child and by any means
        causes the trafficked child to engage in, or become the victim of, conduct prohibited by an
        enumerated section of the Penal Code. Section 20A.02(a)(7). These enumerated sections
        include Tex. Penal Code Ann. § 21.11 (Indecency with a Child) and Tex. Penal Code Ann. §
        22.011 (Sexual Assault). Section 20A.02(a)(7)(B)—(C). The Penal Code also provides that
        "traffic" means to transport, entice, recruit, harbor, provide, or otherwise obtain another
        person by any means. Tex. Penal Code Ann. § 20A.01(4).

Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation
HN3 As long as a statute is constitutional, an appellate court must enforce the statute as it was
      written, not as it might or even should have been written.

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Jury Instructions
HN4 In determining whether charge error has caused egregious harm, an appellate court
      considers the entirety of the jury charge itself, the evidence, including the contested issues
      and weight of the probative evidence, the arguments of counsel, and any other relevant
      information revealed by the record of the trial as a whole.

Criminal Law & Procedure > Jury Instructions > Particular Instructions
Criminal Law & Procedure > Postconviction Proceedings > Parole
HN5 An instruction to the jury stating that the defendant will be eligible for parole benefits the
      State, not the defendant, because it could encourage the jury to assess a longer sentence
      with the expectation that the defendant may not actually serve the entire sentence.



COUNSEL: For Appellant: Ms. Linda Icenhauer-Ramirez, Attorney At Law, Austin, TX.

For State: Mr. Brian Erskine, Assistant Criminal District Attorney, San Marcos, TX.

JUDGES: Before Chief Justice Rose, Justices Pemberton and Field.

OPINION BY: Scott K. Field

OPINION



A jury found appellant Robert Francis Ritz guilty of continuous trafficking of persons and assessed
punishment at life in prison. See Tex. Penal Code § 20A.03. In four points of error, Ritz contends that
the evidence was insufficient to support his conviction and that the trial court erred by incorrectly
instructing the jury that Ritz would not be eligible for parole. We will affirm the trial court's judgment
of conviction.

BACKGROUND1

FOOTNOTES

1   The facts recited herein are taken from the testimony and exhibits presented at trial.



Ritz met K.D., the complaining witness, through an online dating site. Ritz, who was 44 years old at
the time, and K.D., who was 14 at the time, eventually began meeting in person and entered into a
sexual relationship. At first, the two would have sex in Ritz's vehicle or on a blanket outside. Later,
K.D. began sneaking out of her parents' home to see Ritz. Ritz would pick K.D. up near her home,
drive her to his home, have sex with her there, and then drop her off near her home. K.D.
testified [*2] that their sexual encounters began in early fall 2012 and ended in January 2013.

While working on an online harassment case involving K.D.'s friend, police learned that K.D. was
involved in a relationship with an adult male. After extracting information from K.D.'s electronic
devices, police began the investigation of Ritz that led to his arrest. At trial, the State introduced text
messages between Ritz and K.D. which, according to the State, show that Ritz continued his
relationship with K.D. even after he learned that she was a minor. Ritz pleaded not guilty and was
convicted and sentenced, and this appeal followed.

DISCUSSION

Sufficiency of the evidence

In his first two points of error, Ritz contends that the evidence is insufficient to support his conviction
because the State failed to prove that he "trafficked" K.D. HN1 In reviewing whether the evidence is
sufficient to support a conviction, "an appellate court must view the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found each
essential element of the offense beyond a reasonable doubt." Schneider v. State, 440 S.W.3d 839, 841
(Tex. App.—Austin 2013, pet. ref'd) (mem. op.); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(plurality op.).

HN2    The Texas Penal Code provides that a person [*3] commits continuous trafficking of persons "if,
during a period that is 30 or more days in duration, the person engages two or more times in conduct
that constitutes an offense under Section 20A.02 [trafficking of persons] against one or more victims."
Tex. Penal Code § 20A.03(a). A person commits trafficking of persons "if the person knowingly . . .
traffics a child and by any means causes the trafficked child to engage in, or become the victim of,
conduct prohibited by" an enumerated section of the Penal Code. Id. § 20A.02(a)(7). These
enumerated sections include section 21.11 (Indecency with a Child) and section 22.011 (Sexual
Assault). Id. § 20A.02(a)(7)(B)—(C). The Penal Code also provides that "'[t]raffic' means to transport,
entice, recruit, harbor, provide, or otherwise obtain another person by any means." Id. § 20A.01(4).
Therefore, if Ritz transported K.D. and caused her to become the victim of indecency with a child or
sexual assault, then he committed trafficking of persons, and if he did so more than once during a
period of 30 days or more, then he committed continuous trafficking of persons as alleged in the
indictment.

At trial, K.D. testified that on multiple occasions Ritz drove her 20 or 25 minutes in order to have sex
with her at his home. She also testified concerning the duration of [*4] her sexual relationship with
Ritz, which was more than 30 days. K.D.'s friend testified that she observed K.D. and Ritz have sex
inside Ritz's vehicle. The State also presented records extracted from K.D.'s electronic devices
purporting to show text messages sent between K.D. and Ritz. These messages were of a sexual
nature and indicated that K.D. and Ritz were in a sexual relationship with one another. It is undisputed
that K.D. was 14 years old throughout her sexual relationship with Ritz. Viewing this evidence in the
light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found that
Ritz transported K.D. by driving her to his home and back, that Ritz caused K.D. to become the victim
of conduct enumerated in section 20A.02(a)(7) by engaging in sexual activities with her, including
intercourse,2 and that he engaged in this trafficking more than once in a period of 30 days or more. We
therefore conclude that there was sufficient evidence that Ritz committed continuous trafficking of
persons, as defined by statute.

FOOTNOTES

2 Viewing the evidence in the light most favorable to the verdict, Ritz caused K.D. to become the
victim of indecency with a child because he engaged in [*5] sexual contact with her. See Tex.
Penal Code § 21.11(a). He also caused K.D. to become the victim of sexual assault because,
among other things, he penetrated her sexual organ. See id. § 22.011(a)(2)(A).



In his brief, Ritz "acknowledges that viewing the evidence in the light most favorable to the verdict, the
evidence shows that [he] 'transported' the alleged victim to several places not more than 10 miles
from her home for the purpose of engaging in sexual relations with her." He contends, however, that
he did not "traffic" K.D. because the legislature could not have intended this anti-human-trafficking
statute to apply to cases like his that do not involve "the illegal trade of human beings for profit or for
sex trafficking." Ritz further argues that the application of this statute to his conduct would lead to
"absurd consequences" and would effectively increase the punishment range for all sexual offenses
involving a minor. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("[W]here
application of a statute's plain language would lead to absurd consequences that the Legislature could
not possibly have intended, we should not apply the language literally."). In other words, according to
Ritz, anytime an adult engages in sexual activities with a minor the adult will be subject [*6] to
prosecution for trafficking of persons because the adult will always have arguably "transport[ed],
entice[ed], recruit[ed], harbor[ed], provide[d], or otherwise obtain[ed]" the minor. See Tex. Penal
Code § 20A.01(4). The sentencing ranges for the individual offenses enumerated in section 20A.02(a)
(7) are therefore irrelevant—all of this conduct is now subsumed under trafficking of persons and is
punishable as a first-degree felony. See id. § 20A.02(b)(1) (providing that offense under 20A.02(a)(7)
is first-degree felony); id. § 20A.03(e) (providing that continuous trafficking of persons is first-degree
felony punishable by imprisonment for life or for any term of not more than 99 years or less than 25
years).

We agree that Ritz's conduct, however reprehensible it may have been, does not constitute what would
ordinarily be considered "human trafficking" because there were no allegations in this case of
organized crime, prostitution, or forced labor. In addition, Ritz may be correct that the plain language
of this statute is so broad that nearly every adult who has sex with a minor may now be prosecuted as
a human trafficker.

Nevertheless, the current language of the statute is broad, and we cannot conclude that Ritz did not
"transport" K.D. when he drove her to his home in order to have sex with her.3 HN3 As long as a
statute [*7] is constitutional (and Ritz has not challenged the constitutionality of this statute), we
must enforce the statute as it was written, not as it might or even should have been written. See
Boykin, 818 S.W.2d at 785 (courts seek to effectuate intent of legislators "because our state
constitution assigns the law making function to the Legislature while assigning the law interpreting
function to the Judiciary"); id. ("Where the statute is clear and unambiguous, the Legislature must be
understood to mean what it has expressed, and it is not for the courts to add or subtract from such a
statute.") (internal quotation marks omitted).

FOOTNOTES

3 See The Compact Oxford English Dictionary 2100 (2d ed. 1994) (defining "transport" as "To
carry, convey, or remove from one place or person to another; to convey across.").



Moreover, we do not agree with Ritz that the application of this statute to his case leads to an absurd
result that the legislature could not possibly have intended. Although the legislature may not have
foreseen or intended that Ritz's conduct would be classified as human trafficking, it is possible that the
legislature wished to significantly increase the sentences available for persons who commit sexual
crimes involving [*8] children by including all such crimes under the "trafficking" umbrella.4
Furthermore, it is possible that the legislature did intend to classify Ritz's conduct as trafficking
because it determined that removing a child from the safety of her own home and driving her miles
away to the seclusion of the defendant's home in order to sexually assault her is particularly egregious
conduct. In any event, under the plain language of the statute, the evidence is sufficient to support
Ritz's conviction.
FOOTNOTES

4 See In re B.W., 313 S.W.3d 818, 821 (Tex. 2010) ("The Legislature has passed a number of
statutes providing greater protection against sexual exploitation for underage children . . . . In
passing these statutes, the Legislature has expressed both the extreme importance of protecting
children from sexual exploitation, and the awareness that children are more vulnerable to
exploitation by others even in the absence of explicit threats or fraud."). We also note that the
legislature has distinguished between children and adults in section 20A. Section 20A.02(a)(3)
requires the offender to use "force, fraud, or coercion" when causing a trafficked adult to become
the victim of sexual conduct, but section 20A.02(a)(7), which applies to child victims, provides that
the offender may use "any means" [*9] of causing the trafficked child to become the victim of
prohibited sexual conduct. Moreover, while the sexual offenses enumerated in section 20A.02(a)(3)
all pertain to prostitution (and therefore suggest a financial motive), section 20A.02(a)(7) includes
sexual offenses that have nothing to do with commercial sex (such as indecency with a child and
sexual assault). See Tex. Penal Code § 20A.02(a)(3), (7).



Accordingly, we overrule Ritz's first two points of error.

Parole jury instruction

In his third and fourth points of error, Ritz contends that the trial court erred by failing to include the
correct instruction to the jury concerning his parole eligibility and by instead including an erroneous
jury instruction.

At the punishment phase of trial, the court instructed the jury that Ritz "will not be eligible for parole."
As the State concedes, this instruction was erroneous because Ritz may become eligible for parole. See
Tex. Gov't Code § 508.145(d)(1)—(2) (explaining that inmate serving sentence for offense under Penal
Code section 20A.03 is eligible for parole when "the inmate's actual calendar time served, without
consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is
less, but in no event is the inmate eligible for release on parole in less than two calendar
years"). [*10] However, Ritz did not object to the trial court's erroneous instruction. Therefore, we
will reverse the trial court's judgment on this ground only if we conclude that the error "caused actual,
egregious harm" to Ritz. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015); see Kuhn v.
State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref'd). HN4 In determining whether charge
error has caused egregious harm, we "consider the entirety of the jury charge itself, the evidence,
including the contested issues and weight of the probative evidence, the arguments of counsel, and
any other relevant information revealed by the record of the trial as a whole." Jourdan v. State, 428
S.W.3d 86, 97-98 (Tex. Crim. App. 2014) (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.
App. 2007)).

HN5    An instruction to the jury stating that the defendant will be eligible for parole benefits the State,
not the defendant, because it could encourage the jury to assess a longer sentence with the
expectation that the defendant may not actually serve the entire sentence. See Grigsby v. State, 833
S.W.2d 573, 576 (Tex. App.—Dallas 1992, pet. ref'd) ("Texas courts agree that the State, not
appellant, benefits from the parole law instructions . . . . The instruction was designed to increase jury
sentences.") (citations omitted); see also Lemmons v. State, No. 05-08-00205-CR, 2008 Tex. App.
LEXIS 9591, 2008 WL 5341043, at *5 (Tex. App.—Dallas Dec. 23, 2008, no pet.) (mem. op., not
designated for publication) ("[W]e note that the omitted parole law instruction was designed to
increase sentences juries assess and therefore [*11] benefits the State, not the defendant."). Here,
the trial court's error worked in Ritz's favor because it would, if anything, encourage the jury to
decrease Ritz's sentence. Ritz has not explained how the trial court's error harmed him. Moreover,
given the fact that the jury determined that Ritz had engaged in continuous trafficking of persons by
having sex with a child over a span of weeks and that the State had introduced evidence that Ritz
continued his relationship with K.D. even after he learned she was a minor, we cannot conclude that
the life sentence assessed by the jury was the result of the trial court's erroneous parole instruction.
We conclude that the trial court's error did not cause Ritz egregious harm, and we therefore overrule
his third and fourth points of error.

CONCLUSION

Having overruled each of Ritz's points of error, we affirm the judgment of conviction.

Scott K. Field, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: November 24, 2015

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