                               Fourth Court of Appeals
                                      San Antonio, Texas
                                               OPINION

                                          No. 04-17-00815-CR

                                           Issac WILLIAMS,
                                                Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR8370B
                              Honorable Joey Contreras, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 10, 2019

REVERSED AND REMANDED

           After a jury trial, Issac Williams was found guilty of continuous trafficking of persons and

was sentenced to fifty years of imprisonment. On appeal, he brings twenty-three issues. Because

we hold the trial court erred in denying his request for a lesser-included instruction on human

trafficking of persons, we reverse the judgment of the trial court and remand the cause for a new

trial.
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                                                    BACKGROUND

            Williams was accused of trafficking B.F., a minor, during a period that was more than

thirty days in duration. During the guilt/innocence portion of trial, the following witnesses

testified: the complainant B.F.; Sergeant John Elizarde; Agent Shawn Hallett; Christopher Hill;

Agent Johnny Hirst; Sergeant Stormye Jackson; Laurie Smith, and Williams.

            At trial, B.F. testified about her home life, meeting Williams, and how she engaged in

prostitution with Williams and a woman named Deborah Ameia Cooper. As a teenager, B.F. did

not have a stable home life. She and her mother “argued a lot, and so those arguments sometimes

turn[ed] into scruffles [sic], and sometimes, [her mother] would kick [B.F.] out.” When B.F. was

thirteen years old, she lived in Maryland 1 with her mother and younger brother. According to B.F.,

while the family was living in Maryland, they were “homeless for a good while,” “on the street

homeless.” B.F. explained,

            I had to basically have sex for money, so we could get food because we didn’t have
            any money at all. So, it – it wasn’t something that I wanted to do, but I needed to
            feed [my younger brother] because he’s, you know, he’s sick, and he had the CMV
            virus. He’s deaf; he’s autistic; and it takes a lot to take care of a person like that,
            and I always felt like I had to help. So, I did that for my mom, even though she
            didn’t have any money.

When asked on cross-examination who suggested to her at thirteen years old that she should

prostitute herself for her family, B.F. was adamant that “[n]o one suggested it.” She testified she

thought of it all herself.

            According to B.F., when she was fifteen years old, she met Williams on social media–

specifically on a website called Tagged. Williams was in his late twenties. B.F. testified she and

Williams messaged each other for about six to seven months before they met in person in




1
    B.F. and the family later moved to Killeen, Texas.


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December 2013 2 at Lions Park in Killeen, Texas. The park was within walking distance from

where she lived with her mother. B.F. testified she and her mother had gotten into an argument,

and her mother had “kicked her out” of the apartment. According to B.F., she and Williams talked

for about an hour in his Cadillac. Williams then began to ask B.F. about her past sexual

experiences, and B.F. told him about prostituting herself in Maryland:

         [H]e just kept saying he would buy me stuff, that he can get me—he can get me
         money, you know, so I could have my own money, so I could have my own money,
         so I can do what—basically, what I wanted to do. And, you know, “Your mom’s
         not taking care of you. Now, why would she, you know, kick you out? I can give
         you basically something better than she had. . . . He kind of, like I say, sugarcoated
         to have sex for money, but it wasn’t just blatant, “Okay. Do you want to have sex
         for money?” It was more persuasive, kind of, sort of, I guess I can say.

B.F. testified she and Williams then had sex in the car, and Williams later took her back to a hotel.

B.F. testified, “[T]hat’s when the actual and real conversation came up of what I was actually

going to be doing.” On his mobile phone, Williams pulled up the website Backpage and navigated

to the “adults” and then to the “escorts” section. B.F. testified Williams explained the entire process

of placing Backpage ads to find customers and how B.F. could get started. When asked how this

made her feel, B.F. replied,

         It made me feel happy, but I was confused because, like, okay, I did this before; but
         at that time, I didn’t know what an escort was. I thought it was, you know, the
         people who like, you know, walk people like that out of a club or, you know, like
         a police officer, they escort you around, not a prostitute. I don’t know.

According to B.F., Williams said she would keep some of the money she made. However, “over

time, [B.F.] realized that [she] got none of it, that he kept all of it.”

         B.F. testified Williams then introduced her to a twenty-year-old woman, whom Williams

called “Kandy.” During the trial, this woman is referred to by many names, including “Ameia,”



2
 B.F.’s testimony is not consistent on the issue of her age at the time she first met Williams in person. She is clear,
however, that she first met Williams in person in December 2013. As her birthday is March 19, 1997, she was sixteen
years old when she first met Williams in person.


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“Mia,” “Deborah,” and “Kandy.” Her legal name is Deborah Ameia Cooper. According to B.F.,

because Williams called the woman “Kandy,” she also used the name “Kandy.” After this first

meeting with Kandy, B.F. accompanied Williams and Kandy to Wal-Mart so Williams could buy

B.F. some “cute underwear.” When they all returned to the hotel, Williams took pictures of B.F.

and Kandy in their underwear. He then created an advertisement on Backpage with the pictures.

B.F. testified about the process of posting Backpage ads:

           [W]hat you do is you first get a gift card. It’s a Vanilla gift card. And to post a page
           on Backpage, it’s about $12. But the thing about it is, is you’re competing with over
           50,000 girls from all different countries, states, cities, so you constantly have to
           keep posting an ad to get it to the top because you have to get the first three pages
           in order for someone to call you, which is basically the client. And then, you just
           proceed from there.

           The Backpage ads that were introduced as exhibits at trial look similar. They all show the

email address of krobin209@yahoo.com. They all include pictures of B.F. and Kandy. After the

pictures, there is a message. Sometimes the message is from “Amber” (B.F. used this name).

Sometimes the message is from “Kandy.” Whether the message claims to be from Amber or

Kandy, the text is the same: 3

           Hi, Im Kandy.!!! [or “Hi, Im Amber!”] Come enjoy yourself in a more upscale
           atmosphere. If you like my pictures, you will love me in person. I love to have a
           good time.. Some come have some fun with me :) you wont be disappointed! I am
           Native American, Blk & White. More like the Girl Next Door. Thank you! 2 GIRL
           SPECIAL!!
           50 qk
           80 hh
           120 hr
           **PLEASE TEXT OR EMAIL** AND MAKE SURE U SAY UR FROM
           BACKPAGE OR NO REPLY *NO CALLS* krobin209@yahoo.com
           254-245-2663 KANDY
           254-393-5060 AMBER
           IN/ OUT CALL NOW!!
           Poster’s age: 20


3
    The message from the ad is quoted verbatim with grammatical and typographical errors.


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           B.F. explained that “qk” meant ten minutes, “hh” meant a half hour, and “hr” meant an

hour. Thus, the charges were $50 for ten minutes, $80 for thirty minutes, and $120 for an hour.

According to B.F., they traveled from Killeen to Austin to San Antonio, and Williams set the prices

depending on which city they were in. Williams also set a goal of $600 per day for B.F. and $800

per day for Kandy. B.F. testified she and Kandy would stay in a hotel room while Williams either

waited in his Cadillac or stayed in his own hotel room. B.F. would communicate with Williams by

text. After B.F. talked to a client and the client agreed to a service, B.F. would text Williams:

           I would say a QK, which he knows is quickie for $50, and then, he’ll reply back.
           And then, the client—I would go get the client, and I would bring them upstairs,
           and I would text him “I,” which means inside, which means the client is inside the
           room with me, and I’m about to get the money. And that basically lets him know,
           you now, time by time what I’m doing. Once I’m done, once I’ve got the money, I
           would text W, and then, he would text C or H. “C” meant coming up, which means
           he’s coming up to the room, or he’ll text “H” was – which is here I come, you know;
           I’m about to come up to the room.

B.F. testified the customers never saw Williams. Kandy would either remain in the room “if the

client was okay with it,” or “step outside the room and go down the hall, but she had to stay close

just in case she had a client.” “And we would kind of swap back and forth.”

           According to B.F., she began working with Williams and Kandy the week after she first

met Williams in person (i.e. December 2013). They all lived in Williams’s apartment on Winkler

Avenue in Killeen, which was across the street from B.F.’s high school and about a five-to-ten-

minute walk from her mother’s apartment. They worked every day except Sunday, because on

Sundays they went to church. 4

           At the time she left home to move in with Williams and Kandy, B.F. was on juvenile

probation “for stealing out of a car.” B.F. testified she was “supposed to be in the house before

7:00 p.m.” and “check in” with her probation officer every week. However, once she started



4
    B.F. testified the only exception to this general rule was when they had not made enough money during the week.


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working with Williams and Kandy, and was always out of town, she stopped making her weekly

appointments with her probation officer.

        On August 19, 2014, Williams, B.F., and Kandy were all arrested at a hotel in Killeen,

Texas. B.F. testified,

        Mia [Kandy] had told me she was texting a client, that he was coming by, so I said
        okay. I was going to go downstairs and get me something to snack on because I
        was a little hungry. After I got my snack, I came back upstairs, and Mia, she was to
        go get something to snack on and, you know, get something to eat because we were
        hungry. And I believe we actually didn’t have any more TV dinners, so she went
        down. And I was actually about to light a cigarette, and I kept sitting there thinking,
        “Wow, she’s taking a really long time,” and she walks pretty fast. So, I just kept
        sitting there. And just as I was about to light my cigarette, the door opens. And I’m
        thinking it’s her, so I’m not paying attention, and it’s police officers. And they’re
        saying, “Are you [B.F.]?” And, immediately, I freeze, and I’m looking. They just
        kept saying it, “Are you [B.F.]?” And I said, “Yes.” And they said, “Okay. Well,
        we’ve been looking for you for a really long time,” and they said, “Are you okay?”
        I said, “Yes.” And they said, “Is he here?” I said, “No.” I said, “Who” – and you
        know, I already knew who they were talking about, but I was really mostly just in
        shock because they were pointing guns at me, but I know it – it wasn’t, you know,
        like that. After that, they had handcuffed me and took me downstairs where I had
        saw Kandy sitting [in] a chair, and they were talking to me. I forgot about what.
        And then, just as they were sitting there talking to me, I see Issac [Williams] pull
        up. But at first, I knew he was coming. I’d seen his car. But first, he pulled up to
        the side door and then to the front entrance of the hotel. And immediately, I start
        freaking out because he’s really big on not telling the police, the feds anything about
        what we’re doing. He told me, “If you get caught, deny everything because if you
        get caught, it’s a misdemeanor for probation. So, if you get caught, you go to jail, I
        will bail you out, and then, we’ll just keep going.” And so, when I had seen him, I
        told them—I was like, “You got to move me somewhere else.” I was saying, “You
        got to move me somewhere else because if he sees me, I’m going to be in like big
        ass trouble.” And they were like, “Okay. We’re going to move you somewhere
        else.” And that’s when they had arrested him in front of the hotel.

B.F. testified she was arrested because she had a warrant for her juvenile probation violations.

After her arrest, she talked with Sergeant Stormye Jackson, an investigator with the Special

Investigations Unit of the Attorney General’s office. B.F. told Sergeant Jackson about Kandy’s

and Williams’s roles. 5


5
  “Kandy” a/k/a Deborah Ameia Cooper entered into a plea-bargain agreement with the State and was placed on
community supervision. She failed to report to her probation officer, and at the time of trial, was a fugitive.


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       Agent Shawn Hallett, a special agent with the Texas Department of Public Safety’s

Criminal Investigations Division, testified that he was part of an investigation seeking to find

juvenile victims of human trafficking. He began his investigation by reviewing ads on Backpage

and looking for images of people who appeared to be minors. Once he found an image of a person

he believed to be a minor, he would try to identify the person using phone numbers, social media,

and other databases to which he had access. During his investigation, he found one of the ads

featuring “Kandy” and “Amber,” and believed the images depicted a minor. He then ran the phone

numbers contained in the ad through every database, including Facebook and other law

enforcement databases. He was able to link one of the numbers in the ad to a Facebook account

associated with B.F., who he discovered was a juvenile.

       A subpoena was then prepared and sent to Backpage for the email on the ad,

krobin209@yahoo.com. In response to the subpoena, Backpage produced over 3,000 pages of ads

and invoices related to krobin209@yahoo.com. The dates on the ads range from December 9, 2013

to August 14, 2014. On all these ads, the email associated with the Backpage account is

krobin209@yahoo.com. On almost all the invoices associated with the ads, the account person

listed is “kandy” at a fake address (123 jake st) in Killeen, Texas. However, some of the invoices

list “Issac Williams” at William’s real address of 1309 Winkler Ave., Killeen, Texas. Williams’s

name appears on these invoices on the following dates: July 20, 2014, July 21, 2014, July 27, 2014,

July 30, 2014, August 2, 2014, August 3, 2014, August 4, 2014, and August 5, 2014. At trial, every

document produced by Backpage was admitted in evidence as State’s Exhibit 1 over defense

counsel’s objection.

       After obtaining the documents from Backpage, Agent Hallett testified he set up an

undercover operation. On August 14, 2014, he contacted by text one of the phone numbers listed

on the ad (“Kandy (254) 245-2663”) and tried to set a date for Monday, August 18, 2014. However,


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he did not receive a response to his text until the evening of August 18th. According to Agent

Hallett, “Kandy” agreed by text to a date on the following day. Agent Hallett requested that both

girls be present for the date. On the afternoon of August 19, 2014, Agent Hallett texted “Kandy”

and, through text messages, was led to a hotel in Killeen, Texas. Deborah Ameia Cooper, otherwise

known as “Kandy,” let Agent Hallett in through a side door to the hotel. As he was following

Kandy up a stairwell, Sergeant John Elizarde took her into custody. Agent Hallett then went to

Kandy’s hotel room and saw the door propped open. He announced “police,” opened the door, and

saw B.F. Agent Hallett testified he recognized B.F. from the ads and called out her name. After

B.F. responded, he entered the room. Because he knew there was an outstanding juvenile warrant

for B.F., he took her into custody at about 2:00 p.m. He then passed B.F. to Stormye Jackson, an

investigator with the Attorney General’s Office.

         According to Sergeant Jackson, she obtained basic information from B.F., such as her age,

date of birth, what she had been doing at the hotel, and who else had been involved. B.F. gave the

investigators Williams’s name and described his Cadillac.

         Agent Hallett testified that the hotel room was registered to Deborah Ameia Cooper,

otherwise known as “Kandy.” They found three cell phones in the room and a box of condoms.

According to Agent Hallett, when everyone had finished their respective duties at the hotel, they

started to escort B.F. out:

         And as we’re walking out the front door, [B.F.], for lack of a better term, has a
         complete meltdown, trying to – basically, almost falling to the ground. You could
         tell that it was a very fearful thing for her as she began to say, “That’s him.” 6

Agent Hallett looked up and saw a Cadillac that matched B.F.’s description of Williams’s car.

Agent Hallett and a couple of other agents went to the parking lot. Agent Hallett recognized the



6
 All the law enforcement officers present testified similarly. Sergeant Jackson testified B.F. “started hyperventilating”
and having a “panic attack” while she was saying, “That’s him. That’s him.”


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driver as Issac Williams. Agent Hallett testified that as Williams saw the officers come out of the

hotel, he backed out of a parking spot and was attempting to maneuver in the parking lot. Agent

Hallett believed Williams was attempting to leave, so he and the other officers stopped Williams’s

car. Agent Hallett placed Williams under arrest and searched his person and vehicle. In the car, he

found four cell phones, boxes of condoms, and multiple gift cards. Agent Hallett testified he made

the inventory of what had been seized at 4:20 p.m. He was later able to link the gift cards to the

Backpage ads posted by krobin209@yahoo.com.

       Sergeant John Elizarde, an investigator with the Attorney General’s Office, testified to the

same facts as Agent Hallett with regard to the Backpage investigation, the process under which

they found the ads in question, how they identified B.F. in the ads through Facebook, how they

subpoenaed Backpage for the ads related to the krobin209@yahoo.com email, and the sting

operation on August 19, 2014. He added that they linked “Amber” in the Backpage ad to B.F. by

putting the phone number listed for “Amber,” (254) 393-5060, into Facebook. Once they tracked

down B.F.’s identity through her Facebook page, they determined she was “a runaway out of

Killeen” and had been reported missing in May 2014 by her mother. He also testified that “Issac”

on Williams’s driver’s license is spelled the same way “Issac” is spelled on the Backpage invoices.

Further, the address listed on the Backpage invoice, 1309 Winkler Ave., is the same address listed

on Williams’s driver’s license.

       The three cell phones found in the hotel room and the four cell phones found in Williams’s

car were admitted in evidence. “Device 1,” “Device 2,” “Device 6,” and “Device 7” were found

in Williams’s car. “Device 3,” “Device 4,” and “Device 5” were found in the hotel room. Johnny

Hirst, a former special agent with the Texas Department of Public Safety’s Criminal Investigations

Division, testified he took photos of the hotel room and prepared a search warrant and affidavit for




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the cell phones. All seven phones were sent to Christopher Hill of the Victoria Police Department’s

Cyber Crimes Unit for analysis.

         Hill testified Device 1 was a ZTE phone with the phone number (412) 596-4519. He could

not download the phone because the software he uses to extract information was not supported by

the device. He did take several photos of the contents of the phone, which were admitted in

evidence.

         Device 2 was a black Cricket Samsung. According to Hill, Device 2 no longer had a

working phone number, but at one point used the same SIM card as Device 4 and thus the same

phone number of (254) 245-2663. Hill was able to recover call log contacts, a timeline, a user

dictionary, and some data files from Device 2.

         Device 6 was a Samsung Galaxy S5. According to Hill, Device 6 was associated with two

numbers: (254) 285-7788 7 and (254) 393-5060. 8 Hill testified Devices 5 and 6 both had the phone

number (254) 393-5060 at some point because they used the same SIM card. Hill was able to do a

complete download on this phone, which was admitted in evidence. The exhibits containing the

download of contents from the phone reflected messages were sent to the phone from someone

who called himself “Issac from fb.” A message dated December 18, 2013 from “Issac” stated, “I’m

right here, and I’m ready to be there for you.” Further, a TxTag toll account on the phone had the

billing address of 1309 Winkler Ave, Apartment 838, Killeen, Tx, which was Williams’s home

address. The phone listed the contact “Kandy” as (254) 245-2663. 9 There was also a contact listed

in the phone as krobin209@yahoo.com. Issac Williams’s email was listed as a contact in the phone

as tailz286@gmail.com. B.F. was listed as a contact with two phone numbers: (978) 533-4697 and

(254) 393-5060. Kandy was listed as a contact with two phone numbers: (254) 449-1764 and (254)


7
  Williams testified this was his phone number.
8
  B.F. testified this was her phone number.
9
  Hill testified Device 4 is associated with this phone number.


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                                                                                                 04-17-00815-CR

245-2663. The internet history of the phone’s browser showed that on July 29, 2014, a Backpage

ad was accessed by the phone and purchased using the phone.

        Device 7 was a Motorola flip phone. According to Hill, the phone number associated with

this phone was (254) 449-1764. Because Device 7 did not support the software Hill used to do a

forensic analysis, he was not able to download the phone. However, he did take pictures of the

contents of the phone. Hill found a contact for “Lee” with the phone number (254) 393-5060. 10 A

message was sent to Lee from Device 7 stating, “Well, wait. She got one.” Hill also found

communications between Device 7 and (254) 245-2663.

        According to Hill, the phone number (254) 245-2663 was associated with Device 4, which

was a Samsung Galaxy S4 found inside the hotel room. Thus, Hill testified a phone found in

Williams’s car was communicating with a phone found in the hotel room. The phone number (254)

245-2663 was also the phone number listed for “Kandy” on the Backpage ads. 11 When B.F.

testified on direct examination, she stated this phone number belonged to Williams. However, on

cross-examination, she stated that she did not know the phone number for Kandy (Deborah Ameia

Cooper) and finally agreed that this number belonged to Kandy. Hill testified he was able to do a

forensic analysis and retrieve text messages between this phone and (832) 263-6021, the number

used by Agent Hallett in his undercover operation.

        Also found in the hotel room was Device 3, a cell phone manufactured by Huawei. Hill

testified this phone was associated with the phone number (254) 393-5059. According to Hill, he

was not able to examine the contents of this phone because it was locked. He was able to examine

the 8 GB micro SD card and SIM card on the phone, which had some call logs and contacts, but

did not have any text messages.


10
  B.F. testified this was her phone number.
11
  Device 6 had a contact for “Kandy” with this phone number. Hill testified Device 4 is associated with this phone
number.


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           Finally, the last phone found in the hotel room was Device 5, a phone manufactured by

Alcatel and associated with (254) 393-5060. B.F. testified this was her phone number. According

to Hill, he was not able to perform a forensic analysis on this phone because it had an active

passcode. He was able, however, to retrieve some photos from the SIM card. Hill testified Device

5, which was found in the hotel room, and Device 6, which was found in Williams’s car, have the

same phone number. Hill concluded Devices 5 and 6 used the same SIM card at some point.

           Sergeant Elizarde testified that a subpoena was also issued to Yahoo for the

krobin209@yahoo.com email. The documents received in response show that “Kandy Robinson”

was the person who created the email account on June 2, 2013. An alternate email associated with

the account was tailz286@gmail.com. 12 The alternate phone listed for the yahoo account was (254)

245-2663. This was the phone number listed for “Kandy” on the Backpage ads and associated with

Device 4, which was found in the hotel room. A second phone number listed on the Yahoo account

was (254) 449-17641. This number has too many digits to be an accurate phone number; however,

it is similar to the phone number for Device 7, which was (254) 449-1764. Device 7 was found in

Williams’s car. B.F. testified that krobin209@yahoo.com was Williams’s email address. Williams

testified it was Kandy’s email address.

           During questioning, Sergeant Elizarde testified that there was a text message sent on July

8, 2014 from Device 4, a phone found in the hotel room and associated with “Kandy,” to Device

5, a phone also found in the hotel room and associated with B.F.’s phone number. The text message

stated, “Make sure Issac doesn’t see you.” At trial, defense counsel argued this text message was

evidence that (1) Device 4 was not Williams’s phone, but was Kandy’s phone, and (2) Kandy and

B.F. were doing something they did not want Williams to know about. 13 Additionally, defense



12
     Williams testified this was his email address. According to Williams, he allowed Kandy to use his email address.
13
     During his testimony, Williams claimed he had no idea Kandy and B.F. had been prostituting themselves.


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counsel, during questioning of Sergeant Elizarde, pointed out that before the date of this text

message, none of the Backpage ads listed Issac Williams’s name. However, one month later,

Williams’s name was listed on some of the Backpage ads. Thus, the defense argued the evidence

showed Kandy and B.F. had a motive to falsify Williams’s name on the invoices because they

were angry at him about something.

        Finally, the State presented evidence of bail jumping on Williams’s part. Laurie Smith, the

court coordinator for the 187th District Court, testified that Williams did not show up for a previous

trial setting. The State argued the evidence of his bail jumping showed Williams’s consciousness

of guilt.

        Williams testified in his own defense. According to Williams, in November 2010, he was

going to school in Pennsylvania to obtain his associate’s degree and was living with his aunt. He

met Kandy (Deborah Ameia Cooper) through friends, and they had an on-and-off relationship.

According to Williams, he completed his associate’s degree and found a job examining propane

gases. However, in 2013, he was laid off and decided to return to Texas. Kandy moved with him,

and in May 2013, they moved in with Williams’s father. Williams testified that in October 2013,

he and Kandy leased their own apartment in Killeen. They met B.F. at a beauty supply store near

both their and B.F.’s apartments. Williams testified that B.F. and Kandy bonded over a discussion

about hair. They all became friends on Facebook. According to Williams, Kandy and B.F. were

good friends and would go out a lot together. Williams claimed that B.F. did not live with him and

Kandy, but was over a lot. Williams admitted that he flirted with B.F. on Facebook and later

through text, but claimed that in December 2013 he blocked B.F. on Facebook. Williams testified

B.F. became angry and claimed he was going to “pay” for blocking her.

        Williams admitted that tailz286@gmail.com was his email address but claimed Kandy had

access to it. He testified krobin209@yahoo.com was Kandy’s email address, which she used “to


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do hair and stuff.” Williams was adamant that he never “pimped out” B.F. or Kandy. He also

claimed he never met B.F. in person to recruit her.

       According to Williams, in July 2014 he decided to move to Austin to find work, because

his unemployment benefits were about to expire (he had not found a job since moving back to

Texas). On August 1, 2014, he and Kandy moved to their new apartment in Austin. He testified

B.F. came to Austin and picked up Kandy. They then went to Killeen together and stayed at the

Sleep Inn. Williams testified he later drove to the Sleep Inn and spent time with Kandy; B.F. was

not at the hotel, but later came into the room. Williams testified Kandy and B.F. wanted to smoke

marijuana, and he left to visit a friend. He then returned to Austin. According to Williams, the next

day, he drove back to Killeen to pick up Kandy at the hotel. When he arrived, Kandy, B.F., and

B.F.’s boyfriend were in the hotel room. Williams testified Kandy “pulled [him] to the side” and

gave him all these gift cards and credit cards. She told him B.F. was stealing from her and wanted

Williams to keep the cards for her. According to Williams, he was then asked by B.F.’s boyfriend

for a ride to the repair shop to pick up his car. Williams testified he then came back to the hotel to

pick up Kandy. He tried to park, but the lot was full. He was trying to turn his car around to find

another parking spot when “these guys run in front of my car at gunpoint” and stopped his car.

Williams got out of the car and was immediately arrested. His person and his car were searched.

       The officers found four phones in Williams’s car. Two were found in his trunk and two

were found inside the passenger compartment. Williams testified his phone number was (254) 285-

7788, which was associated with Device 6. Device 6 was found inside the passenger compartment

of Williams’s car. Williams explained all the incriminating information found on Device 6 was a

result of him and Kandy switching phones a few days before. According to Williams, they had

“merged” their phones at the mobile phone store. Williams testified Kandy had four phones

because she kept buying new ones and upgrading.


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       According to Williams, Device 7, the flip phone also found in the passenger compartment

of his car, belonged to Kandy. When asked by the State how Device 4, a phone associated with

“Kandy’s” number and found in the hotel room, could have been communicating that day with

Device 7, Williams changed his testimony. He blamed B.F.’s boyfriend, whom Williams had given

a ride. Williams testified Device 7 must have fallen out of the pocket of the boyfriend’s pants.

Williams suspected that B.F.’s boyfriend was the one working with B.F. Williams claimed Kandy

had told him B.F. and her boyfriend had been trying to recruit her, information Williams claimed

he had not known at the time of the arrest but learned later. According to Williams, the boxes of

condoms found in his trunk were his condoms. He pointed out that the condoms found in the hotel

room were different than the ones he had in his trunk.

       Williams admitted that the messages on his phone the day of the arrest show that he was

flirting with other women. But, Williams argued that he was only flirting and was not recruiting

women for prostitution.

       After all the evidence was presented, Williams was found guilty of continuous trafficking

of B.F. and was sentenced to fifty years of imprisonment. On appeal, he brings twenty-three issues.

In particular, Williams argues in his ninth issue that the trial court erred in denying his request for

an instruction on the lesser-included offense of human trafficking.

           ISSUE 9: JURY CHARGE-INSTRUCTIONS ON LESSER-INCLUDED OFFENSES

       Williams was charged with the offense of continuous trafficking of persons from on or

about December 22, 2013 through August 18, 2014. At trial, his requests for instructions on the

lesser-included offenses of human trafficking, compelling prostitution, and prostitution were

denied. Williams argues on appeal that he suffered harm as a result of the trial court’s failure to

give the requested instructions.




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       The court of criminal appeals has explained that the “purpose of liberally permitting

charges on lesser-included offenses” is to prevent putting the jury in the predicament of choosing

between two “equally distasteful” options, Bignall v. State, 887 S.W.2d 21, 24-25 (Tex. Crim.

App. 1994), and thereby “uphold the integrity of the system,” Grey v. State, 298 S.W.3d 644, 656

n.22 (Tex. Crim. App. 2009).

       If no charge [on the lesser-included offense] is given, then the jury has two options
       which are equally distasteful. The first option is to vote not guilty in a situation
       where they believe the defendant committed [the lesser offense]. The other option
       is to vote guilty of [the greater offense], an offense they believe the defendant did
       not commit.

Eldred v. State, 578 S.W.2d 721, 723 (Tex. Crim. App. [Panel Op.] 1979), overruled in part by

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).

       In determining whether the trial court erred in denying Williams’s requested instructions,

we use a two-step analysis. Ritcherson v. State, No. PD-0021-17, 2018 WL 6519277, at *2 (Tex.

Crim. App. Dec. 12, 2018) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.

1993)). “First, we compare the elements and the facts of the offense alleged in the indictment with

the elements of the potential lesser-included offense to determine whether the lesser-included

offense is included within the proof necessary to establish the charged offense.” Munoz v. State,

533 S.W.3d 448, 453 (Tex. App.—San Antonio 2017, pet. ref’d); see also Ritcherson, 2018 WL

6519277, at *2. “This question is a matter of law and is not dependent on the evidence to be

produced at trial.” Munoz, 533 S.W.3d at 453; see also Bullock v. State, 509 S.W.3d 921, 924 (Tex.

Crim. App. 2016).

       “Second, there must be evidence from which a rational jury could find the defendant guilty

of only the lesser offense.” Ritcherson, 2018 WL 6519277, at *2 (citing Bullock, 509 S.W.3d at

925). “That requirement is met if there is (1) evidence that directly refutes or negates other

evidence establishing the greater offense and raises the lesser-included offense or (2) evidence that


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                                                                                       04-17-00815-CR

is susceptible to different interpretations, one of which refutes or negates an element of the greater

offense and raises the lesser offense.” Id. (citing Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.

Crim. App. 1992)). “The evidence raising the lesser offense must be affirmatively in the record.”

Id. “That is, a defendant is not entitled to a lesser-included offense instruction based on the absence

of evidence, and the evidence must be ‘directly germane to the lesser-included offense.’” Id.

(quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)).

       “We consider all the evidence admitted at trial, not just the evidence presented by the

defendant, and if there is more than a scintilla of evidence raising the lesser offense and negating

or rebutting an element of the greater offense, the defendant is entitled to a lesser-charge

instruction.” Id. (citations omitted) (emphasis added). “It does not matter whether the evidence is

controverted or even credible.” Id.; see Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994)

(“The credibility of the evidence and whether it conflicts with other evidence or is controverted

may not be considered in determining whether an instruction on a lesser-included offense should

be given.”).

   A. First Step: Were any of Williams’s requested instructions lesser-included offenses of
      continuous trafficking of persons?

       Article 37.09 of the Texas Code of Criminal Procedure provides that an offense is a lesser-

included offense if:

       (1) it is established by proof of the same or less than all the facts required to
           establish the commission of the offense charged;
       (2) it differs from the offense charged only in the respect that a less serious injury
           or risk of injury to the same person, property, or public interest suffices to
           establish its commission;
       (3) it differs from the offense charged only in the respect that a less culpable mental
           state suffices to establish its commission; or
       (4) it consists of an attempt to commit the offense charged or an otherwise included
           offense.




                                                 - 17 -
                                                                                          04-17-00815-CR

TEX. CODE CRIM. PROC. ANN. art. 37.09. Williams argues that human trafficking, compelling

prostitution, and prostitution are lesser-included offenses of continuous trafficking of persons.

       To traffic “means to transport, entice, recruit, harbor, provide, or otherwise obtain another

person by any means.” TEX. PENAL CODE ANN. § 20A.01(4). As permitted by the indictment in

this case, a person commits the offense of 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.”

Id. § 20A.03(a). As applicable in this case, a person commits trafficking of persons if the person

knowingly:

       (7) traffics a child and by any means causes the trafficked child to engage
       in, or become the victim of, conduct prohibited by . . . (H) Section 43.05
       (Compelling Prostitution); . . . or

       (8) receives a benefit from participating in a venture that involves an activity
       described by Subdivision (7) or engages in sexual conduct with a child
       trafficked in the manner described in Subdivision (7).

Id. § 20A.02(a)(7)(H), (8). A “child” is defined as “a person younger than 18 years of age.” Id.

§ 20A.01(1). Further, a person commits the offense of compelling prostitution “if the person

knowingly . . . (2) causes another by any means a child younger than 18 years to commit

prostitution, regardless of whether the actor knows the age of the child at the time of the offense.”

Id. § 43.05(a)(2). Finally, a person commits prostitution if the person “knowingly offers or agrees

to receive a fee from another to engage in sexual conduct.” Id. § 43.02(a).

       As charged in this case, the only difference between the offenses of continuous trafficking

of persons and trafficking of persons is that the offense of continuous trafficking of persons

requires proof Williams, “during a period that is 30 or more days in duration,” engaged “two or

more times in conduct that constitutes” trafficking of persons. Therefore, we conclude trafficking

of persons is included within the proof necessary to establish the charged offense of continuous



                                                - 18 -
                                                                                     04-17-00815-CR

trafficking of persons. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1); Dukes v. State, No. 13-14-

00731-CR, 2016 WL 1393930, at *8 (Tex. App.—Corpus Christi–Edinburg 2016, pet. ref’d)

(mem. op., not designated for publication) (holding trafficking of persons within proof necessary

to establish continuous trafficking of persons). Having satisfied the first step of the analysis, we

now proceed to the second step.

   B. Second Step: Is there more than a scintilla of evidence from which a rational jury could
      find that Williams was guilty of only trafficking of persons and not continuous trafficking
      of persons?

       The second step of the analysis requires us to examine the entire record and determine

whether there is “more than a scintilla of evidence” to support the defendant’s request for the

instruction on the lesser-included offense. Bullock, 509 S.W.3d at 925. “Although this threshold

showing is low, it is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense, but rather there must be some evidence directly germane to the lesser-included

offense for the finder of fact to consider before an instruction on a lesser-included offense is

warranted.” Id. “However, we may not consider the credibility of the evidence and whether it

conflicts with other evidence or is controverted.” Id. (citation omitted). “Accordingly, . . . the

standard may be satisfied if some evidence refutes or negates other evidence establishing the

greater offense or if the evidence presented is subject to different interpretations.” Id. (citation

omitted).

       In considering whether the lesser-included offense of trafficking of persons is a valid,

rational alternative to the charged offense of continuous trafficking of persons, “we must compare

the statutory requirements between the greater offense—here, [continuous trafficking of

persons]—and the lesser offense—here, [trafficking of persons]—to determine whether evidence

exists to support a conviction for [trafficking of persons] but not [continuous trafficking of

persons].” Id. On appeal, Williams points to evidence that refutes the element required for


                                               - 19 -
                                                                                                    04-17-00815-CR

continuous trafficking of persons that the defendant committed trafficking of persons two or more

times “during a period that is 30 or more days in duration.” See TEX. PENAL CODE ANN.

§ 20A.03(a). Specifically, Williams points to evidence relating to the posting of Backpage ads,

noting that his name appears only on a few ads that ran from July 20th to August 7th, a period of

time less than thirty days. 14

         The thousands of pages of Backpage ads admitted as State’s Exhibit 1 show that all the ads

were associated with the email krobin209@yahoo.com. The name and address on the invoices for

almost all the ads was “kandy” at 123 Jake St., Killeen, Texas 76541. The dates on the ads range

from December 9, 2013 to August 14, 2014.

         “Issac Williams” with the address of 1309 Winkler Ave., Killeen, TX 76542 appears on

the following invoices:

         (1)      July 20, 2014, at 5:25 p.m.

         (2)      July 20, 2014, at 10:01 p.m.

         (3)      July 21, 2014, at 2:57 a.m.

         (4)      July 30, 2014, at 10:32 a.m.

         (5)      August 2, 2014, at 9:44 p.m.

         (6)      August 3, 2014, at 12:53 a.m.

         (7)      August 4, 2014, at 5:48 p.m.

         (8)      August 4, 2014, at 8:15 p.m.



14
  Williams also relies on excluded evidence showing he “was not engaging in this offense, if at all, every day from
January 1, 2014 until August 19, 2014 as B.F. testified.” According to Williams, “[t]he excluded probation evidence
established that B.F. was living at home until the end of May at the earliest.” Thus, Williams argues this excluded
evidence established that if he “was trafficking B.F., he may have only done it in a period of time that was less than
30 days.” However, Williams cannot rely on excluded evidence to support his argument that he was entitled to an
instruction on a lesser-included offense; in making that determination, a court considers only evidence that was
admitted. See Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (explaining if the offense contained in the
requested instruction is a lesser-included offense of the charged offense, the court must then “decide whether the
admitted evidence supports the instruction”) (emphasis added).


                                                        - 20 -
                                                                                      04-17-00815-CR

       (9)     August 4, 2014, at 10:05 p.m.

       (10)    August 5, 2014, at 1:25 a.m.

       (11)    August 5, 2014, at 11:28 a.m.

       (12)    August 5, 2014, at 4:06 p.m.

Thus, there is some affirmative evidence that Issac Williams placed and purchased the Backpage

ads from July 20th to August 5th, a period less than thirty days. Williams argues this is affirmative

evidence from which a rational jury could find him guilty of only trafficking of persons.

       In response, the State argues that the “fact that Williams’s name only appears [on] some of

the ads does not negate other evidence establishing that he encouraged B.F. to engage in

prostitution as early as December 2013 when he took her to a motel to meet Deborah Cooper

[Kandy] and explained to her details of the prostitution business.” According to the State, the

“evidence does not affirmatively negate that Williams took the pictures that featured both B.F. and

Cooper [Kandy] in the Backpage ads.” “Nor does it affirmatively negate B.F.’s testimony that

Williams drove her to motels where she had sex for money on every occasion.” We disagree with

this analysis by the State. The affirmative evidence from which a rational jury could find Williams

guilty of only trafficking of persons need not rebut all other evidence. It need only be “some

evidence,” that is, more than a “scintilla,” “directly germane to the lesser-included offense for the

finder of fact to consider.” Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). Moreover,

a court “may not consider the credibility of the evidence and whether it conflicts with other

evidence or is controverted,” id. at 446-47, because “a jury is permitted to believe or disbelieve

any part of a witness’s testimony,” Bullock, 509 S.W.3d at 925.

       In considering all the evidence presented at trial, we conclude there is more than a scintilla

of evidence from which a rational jury could conclude Williams was guilty of only trafficking of

persons and not continuous trafficking of persons. The Backpage ads relied on by Williams are


                                                - 21 -
                                                                                     04-17-00815-CR

affirmative evidence directly germane to whether Williams trafficked B.F. for a period of more

than thirty days. The Backpage ads are evidence from which a rational jury could conclude

Williams was placing and posting ads in an effort to compel B.F. to commit prostitution from July

20, 2014 to August 5, 2014, a period of less than thirty days. The jury could compare how the

invoices were completed and conclude different people posted the ads. Between July 20, 2014 and

August 5, 2014, “Issac Williams” at his home address was invoiced twelve times. During that same

time period, “kandy” at a fake address was invoiced many more times than “Issac Williams.”

Further, with regard to the ads placed before July 20, 2014 and after August 5, 2014, it was “kandy”

again who was invoiced. Given the difference in how the ads were invoiced, the jury could have

believed Williams posted only the ads where his name appears on the invoice and that someone

else posted the other ads.

       Additionally, the jury could infer from Kandy’s text message to B.F. on July 8, 2014, which

instructed B.F. to “make sure Issac doesn’t see you,” that before July 20, 2014 (the date Williams’s

name first appeared on the Backpage invoices), Kandy and B.F. were acting without Williams’s

knowledge. The jury could also believe Williams’s testimony that Kandy and B.F. were acting

without his knowledge during part of the period of time in question, but disbelieve his testimony

that he did not know they were engaging in prostitution at the time of his arrest. The jury could

also disbelieve the other evidence showing Williams was committing the offense for a period more

than thirty days. Instead, the jury could believe it was Kandy, otherwise known as Deborah Ameia

Cooper, who acting on her own was the person trafficking B.F. for the period of time before July

20, 2014 and after August 5, 2014. In making this determination, the jury could rely on evidence

showing that (1) “Kandy” appeared on almost all the ads; (2) Deborah Ameia Cooper was

identified as “Kandy”; and (3) Kandy’s phone found in the hotel room contained text messages

between her and Agent Hallett. The jury could also believe Williams’s testimony that the reason


                                               - 22 -
                                                                                       04-17-00815-CR

his phone, which police found in his car, had incriminating evidence on it was because he had

“merged” his phone with Kandy’s phone only a few days before the arrest at the Sleep Inn.

       The likelihood of the jury actually making these conclusions is immaterial to the issue of

whether Williams was entitled to an instruction on the lesser-included offense of trafficking of

persons. In Bignall, 887 S.W.2d at 24, the court of criminal appeals noted that the evidence relied

on by the appellant, the testimony of an accomplice, was “suspect.” Nevertheless, the court

emphasized that “the jury is the sole judge of the credibility of the witnesses, and it does not matter

whether the evidence is strong, weak, unimpeached or contradicted.” Id. (citing Booth v. State, 679

S.W.2d 498, 500 (Tex. Crim. App. 1984)). Thus, the court held the trial court erred in failing to

give the requested instruction on the lesser-included offense. Id.

       Because (1) the only difference between continuous trafficking of persons and trafficking

of persons is the time period of more than thirty days, and (2) the admitted Backpage ads and other

testimony provide affirmative evidence showing Williams committed the offense for a period of

less than thirty days, we hold Williams was entitled to an instruction on the lesser-included offense

of trafficking of persons.

   C. Was Williams harmed by the trial court’s denial of his requested instruction on the lesser-
      included offense of trafficking of persons?

       We analyze harm regarding an erroneous refusal to give a requested instruction on a lesser-

included offense under the standard enunciated in Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g). See Grey, 298 S.W.3d at 648. Because Williams preserved error

by requesting the lesser-included instruction, we reverse the conviction if the denial of the

instruction resulted in some harm to him. Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App.

2013). “Some harm” means actual harm and “not just a theoretical complaint.” Id. at 449-50. In

evaluating whether some harm exists, we “consider the totality of the record,” including the “entire




                                                 - 23 -
                                                                                       04-17-00815-CR

jury charge,” “the state of the evidence, including the contested issues and weight of probative

evidence,” “the argument of counsel,” and “any other relevant information revealed by the record

of the trial as whole.” Id. at 450.

        When a lesser-included instruction is erroneously denied, the jury is also “denied the

opportunity to consider the entire range of offenses presented by the evidence.” Saunders v. State,

913 S.W.2d 564, 571 (Tex. Crim. App. 1995) (citation omitted). That is, when a lesser-included

instruction raised by the evidence is denied, a jury, “believing the defendant to have committed

some crime, but given only the option to convict him of a greater offense, may have chosen to find

him guilty of that greater offense, rather than to acquit him altogether, even though it had a

reasonable doubt he really committed the greater offense.” Id. (discussing rationale by Supreme

Court in Beck v. Alabama, 447 U.S. 625, 634 (1980)). Thus, the court of criminal appeals has

“routinely found ‘some’ harm, and therefore reversed, whenever the trial court has failed to submit

a lesser included offense that was requested and raised by the evidence—at least where that failure

left the jury with the sole option either to convict the defendant of the greater offense or to acquit

him.” Id. According to the court, “‘some’ harm occurs because the jury was not permitted to fulfill

its role as factfinder to resolve the factual dispute whether the defendant committed the greater or

lesser offense.” Id.

        Here, the jury charge permitted the jury to either convict Williams of continuous trafficking

of persons or to acquit him altogether. Although Williams requested the lesser-included instruction

on trafficking of persons and although there was some evidence to support the submission of

trafficking of persons, the jury was “denied the opportunity to consider the entire range of offenses

presented by the evidence.” Saunders, 913 S.W.2d at 571. Therefore, we conclude Williams

suffered some harm by the trial court’s refusal to submit the lesser-included offense of trafficking

of persons.


                                                - 24 -
                                                                                                 04-17-00815-CR

                                                CONCLUSION

        Because Williams was entitled to the lesser-included instruction on trafficking of persons

and because he suffered some harm by its omission, we reverse the judgment of the trial court and

remand the cause for a new trial. 15

                                                         Liza A. Rodriguez, Justice
Publish




15
  As none of Williams’s other twenty-two issues would require rendering a judgment of acquittal, having determined
that Williams is entitled to a new trial, we need not reach the merits of those other twenty-two issues.


                                                      - 25 -
