                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-18-00273-CR

                                      Mark Henry BENAVIDES,
                                             Appellant

                                                   v.

                                          The STATE of Texas,
                                                Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CR7193
                              Honorable Dick Alcala, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: October 30, 2019

AFFIRMED

           A jury found appellant Mark Henry Benavides guilty of six counts of continuous trafficking

of persons and assessed punishment at eighty years’ confinement for each count. On appeal,

Benavides contends the trial court erred by admitting certain witness testimony, denying his

request for a mistrial, and failing to include an accomplice witness immunity instruction. He also

challenges the constitutionality of the statute making continuous trafficking of a person a criminal

offense. We affirm the trial court’s judgment of conviction.
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                                         BACKGROUND

       The San Antonio Police Department investigated Benavides, a criminal defense attorney,

after a woman alleged he forced her to have sex with him in exchange for legal services. During

the investigation, a detective met with other women who made the same allegations. The women

alleged that Benavides, who was their attorney, met with them—usually at their homes—to discuss

their cases, then drove them to a motel to have sex. The women alleged Benavides made them

have sex with him on multiple occasions and recorded the sexual encounters despite their

objections.

       The investigation ultimately led to the discovery of more than 200 videos of Benavides

having sex with the women as well as directing them what to say and how to act on video. The

State ultimately charged Benavides with six counts of continuous trafficking of persons. At trial,

the jury heard testimony from several witnesses, including Bexar County detectives and

investigators, a clinical psychologist, and six women who alleged Benavides forced them to have

sex with him in exchange for legal services. The State also introduced the videos, which Benavides

had labeled by date, name, and sexual act, and stored at his home. After the jury found Benavides

guilty on all six counts and assessed punishment at eighty years’ confinement for each count, the

trial court signed a judgment consistent with the jury’s verdict. Benavides appealed.

                                           ANALYSIS

                             Admission of Dr. Pierce’s Testimony

       In his first issue, Benavides argues the trial court erred in admitting testimony from the

State’s expert, Dr. Aaron Pierce, that two of the six complainants exhibited symptoms of human

trafficking because such testimony was conclusory, speculative, and invaded the province of the

jury. The State responds that Dr. Pierce’s testimony was properly admitted because Dr. Pierce

was qualified to express an opinion as to the characteristics of sexual assault victims. The State


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also argues that even if the testimony was inadmissible, the admission of the testimony was

harmless error.

                                         Standard of Review

       We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). An abuse of discretion occurs

only if the trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules

and principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016). We may not reverse

the trial court’s ruling unless the determination “falls outside the zone of reasonable

disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). An evidentiary

ruling will be upheld if it is correct on any theory of law applicable to the case. De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

                                           Applicable Law

       “To be admissible, expert testimony must assist the trier of fact.” Schutz v. State, 957

S.W.2d 52, 59 (Tex. Crim. App. 1997) (internal quotations omitted); see TEX. R. EVID. 702. When

the jury is not qualified to “the best possible degree” to determine a particular issue intelligently,

expert testimony is helpful. Schutz, 957 S.W.2d at 59. Expert testimony is not helpful, however,

if it constitutes “a direct opinion on the truthfulness” of a complainant’s allegations.” Id. “[T]here

is a ‘fine but essential line’ between helpful expert testimony and impermissible comments on

credibility.” Id. (quoting State v. Myers, 382 N.W.3d 91, 98 (Iowa 1986)).

                                             Application

       The State called Dr. Pierce, a psychologist with more than twenty years of experience in

treating sex offenders and victims, to testify about grooming behaviors and that victims of sexual

abuse may respond differently than a layperson would expect. On direct examination, Dr. Pierce

testified that offenders typically groom their victims by developing a relationship with them so


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that when the crime is committed, the victim is more likely to keep it a secret. According to Dr.

Pierce, offenders are often in a position of power and can coerce victims “to go along with it” by

using emotional force. Dr. Pierce added an attorney would “certainly” have power over a client

due to an attorney’s knowledge of the legal system. When asked about human trafficking, Dr.

Pierce testified human traffickers often look for people who are “exceptionally weak” and easy to

control, making them less likely to report a crime. For these reasons, Dr. Pierce explained, human

trafficking victims, like sexual abuse victims, feel embarrassed, guilty, and fear their offender will

retaliate against them if they report the crime.

       On cross-examination, defense counsel vigorously challenged Dr. Pierce’s credibility by

pointing out he had not interviewed Benavides or any of the complainants. In response, the State

elicited testimony that Dr. Pierce was present when two of the complainants testified and was able

to observe their demeanor and mannerisms. The State then asked whether he believed the two

complainants exhibited typical symptoms of human trafficking victims. The trial court overruled

Benavides’s timely objection, and Dr. Pierce testified that both complainants displayed themselves

in ways consistent with sexual abuse and human trafficking victims he had examined. He further

added that based on his experience and the literature, people respond in a variety of different—

and sometimes unpredictable—ways to being sexually assaulted.

       Benavides does not dispute that Dr. Pierce was qualified to testify as an expert. Rather, he

argues Dr. Pierce’s testimony was conclusory and speculative because it was “tantamount to

testifying that the women were being truthful in their testimony.” We disagree. Dr. Pierce’s

testimony drew no conclusions and made no speculation as to the two complainants’ truthfulness.

Dr. Pierce simply was not asked his opinion of the two complainants’ credibility. Rather, he spoke

generally about whether the two complainants demonstrated behaviors of human trafficking

victims. See DeLeon v. State, 322 S.W.3d 375, 382–83 (Tex. App.—Houston [14th Dist.] 2010,


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pet. ref’d) (holding expert’s statements that complainant exhibited behavior similar to sexually

abused child was admissible and not comment on truthfulness). Because, inter alia, the State

offered this testimony to rebut Benavides’s attempts to discredit Dr. Pierce on the basis that he

lacked personal knowledge of the two complainants or Benavides, we cannot say that the trial

court abused its discretion in admitting Dr. Pierce’s testimony.

       Even assuming the trial court erred in overruling Benavides’s objections, any error must

be disregarded unless it affected Benavides’s substantial rights. See TEX. R. APP. P. 44.2(b). A

substantial right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). The

erroneous admission of evidence does not require reversal if, after examining the record as a whole,

we have a fair assurance that the error did not influence the jury or had but a slight effect. Taylor

v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).

       After examining the record as a whole, we conclude that the admission of Dr. Pierce’s

testimony did not have a substantial or injurious effect or influence on the jury. See King, 953

S.W.3d at 271. Here, the jury heard testimony from the two complainants that Benavides was their

lawyer and he made them have sex with him multiple times in exchange for legal services. The

jury also saw video excerpts of the sexual encounters between Benavides and the two

complainants. Moreover, the trial court instructed the jurors that they were the “exclusive judges

of the facts provided, of the credibility of the witnesses, and of the weight to be given to the

testimony.” See Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (noting that absent

evidence to contrary, we presume jury followed instructions provided in charge). We therefore

overrule Benavides’s first issue.




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                                              Mistrial

       Benavides next argues the trial court erred in denying his motion for mistrial when one of

the jurors fainted following the presentation of video evidence. According to Benavides, the

juror’s reaction was unduly prejudicial and deprived him of his right to a fair trial by an impartial

jury. In response, the State argues that Benavides inadequately briefed this issue and therefore

waived it. Because Benavides provides some argument to support this issue with appropriate

citations to authorities and to the record, we will address it. See TEX. R. APP. P. 38.1(i).

                                        Standard of Review

       We review a trial court’s decision to deny a motion for mistrial for abuse of discretion, and

we will not reverse that decision unless it was outside the “zone of reasonable disagreement.”

Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). A mistrial is appropriate where

“error is so prejudicial that expenditure of further time and expense would be wasteful and futile.”

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “The determination of whether a given

error necessitates a mistrial must be made by examining the particular facts of the case.” Id.

                                             Application

       On the first day of trial, the trial court admitted State’s Exhibit 32 (“SX32”), a graphic

video of Benavides having sex with one of the complainants. As the State played the video for the

jury, the bailiff informed the trial court that the jurors needed a break. The trial court granted the

request, and as the bailiff led the jurors out of the courtroom, Juror 8 fainted. After Juror 8

recuperated, the jurors went back into the courtroom. The trial court then excused the jury and

explained for the record: “About three minutes into the video, the Bailiff indicated to the Court

that the jurors needed a break, as the Court granted. As the jurors were being led out to the jury

room, a female juror fainted in the hall and she was given time to recuperate.” Benavides moved

for a mistrial, arguing Juror 8’s “strong reaction to the videos” was “unduly prejudicial.” After


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questioning outside the presence of the remaining jurors, the trial court excused Juror 8 from the

courtroom and asked defense counsel if there was any objection to dismissing Juror 8 and replacing

her with an alternate juror. Defense counsel did not object, and the trial court dismissed Juror 8.

       On appeal, Benavides argues Juror 8’s reaction to SX32 “increased [the other jurors’]

perception that the video they witnessed was shocking and/or offensive.” Even if it did, however,

a mistrial would not be warranted unless Benavides could show a reasonable probability that Juror

8’s reaction actually interfered with the jury’s verdict. See Coble, 330 S.W.3d at 292 (applying

rule in context of outburst from bystander and witness that interfered with normal proceedings of

trial). For instance, in a case where a juror became physically ill and asked to lie down after

viewing autopsy photographs, our sister court concluded the juror’s reaction “was not so

emotionally inflammatory as to prejudice the jury.” Edwards v. State, 106 S.W.3d 833, 838 (Tex.

App.—Dallas 2003, pet. ref’d). There, the trial court appropriately recessed and ensured the juror

had recovered before proceeding. Id. at 839. Here, the trial court also granted the jurors a break

when they needed one and replaced Juror 8 with an alternate juror when it determined Juror 8

could not continue. See id. Like the defendant in Edwards, Benavides moved for a mistrial but

did not request a curative instruction, object to the trial court’s replacement of Juror 8 with an

alternate juror, or explain to the trial court how Juror 8’s reaction actually prejudiced the rest of

the jury. See id. Accordingly, we conclude the trial court did not abuse its discretion in refusing

to grant a mistrial. We overrule Benavides’s second issue.

                           Accomplice Witness Immunity Instruction

       Benavides contends the trial court erred in denying his request for an accomplice witness

immunity instruction. According to Benavides, the trial court should have instructed the jury that

each of the complainants secured immunity from prosecution in exchange for their testimony

because the outcome of the case depended on the jury’s assessment of the credibility of these


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witnesses. In response, the State argues Benavides failed to timely request this instruction or to

demonstrate how he was entitled to it.

                                         Standard of Review

       We review the trial court’s denial of a requested jury instruction for an abuse of discretion.

See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). When reviewing a trial

court’s decision to refuse a requested defensive instruction, we view the evidence in the light most

favorable to the defendant’s requested submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex.

Crim. App. 2006).

                                          Applicable Law

       “Under Texas law, the judge must provide the jury with a written charge distinctly setting

forth the law applicable to the case; not expressing any opinion as to the weight of the evidence,

not summing up the testimony, discussing the facts or using any argument in his charge calculated

to arouse the sympathy or excite the passions of the jury.” Walters v. State, 247 S.W.3d 204, 208

(Tex. Crim. App. 2007) (internal quotations omitted). A trial judge must instruct the jury on

statutory defenses, affirmative defenses, and justifications when such matters are raised by the

evidence. Id.

       Before the formal charge conference, Benavides requested a “Section 28.04 [sic]

accomplice witness, testimony of immunity” instruction. Section 20A.04 of the Texas Penal Code

provides that a party to an offense may not be prosecuted for any offense about which she is

required to testify. TEX. PENAL CODE. ANN. § 20A.04. The statute further provides that such

“testimony may not be used against the party in any adjudicatory proceedings, except a prosecution

for aggravated perjury.” Id.




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                                             Application

       Benavides essentially asks us to require a trial court to include an instruction on immunity

which the jury could use to discredit the complainants’ testimony. We decline to do so. Benavides

does not point to any controlling authority supporting such a requirement, and we have not

identified a sound basis for such an instruction. First, as our sister court has recognized, a grant of

immunity does not necessarily discredit a witness’s testimony. See Jester v. State, 62 S.W.3d 851,

855–56 (Tex. App.—Texarkana 2001, pet. ref’d) (holding no error when trial court declined to

instruct jury that witness who was granted immunity was accomplice as matter of law). Second,

unlike the accomplice witness instruction outlined in article 38.14 of the Texas Code of Criminal

Procedure, which ensures a defendant’s conviction is not based solely on uncorroborated

accomplice testimony, section 20A.04 protects trafficking victims by granting them immunity,

inducing them to testify when their testimony may inculpate them. See TEX. CODE. CRIM. PRO.

ANN. art. 38.14; Jester, 62 S.W.3d at 855–56. To require a section 20A.04 instruction for the sole

purpose of discrediting a witness would violate longstanding Texas law prohibiting trial courts

from commenting on the credibility of witnesses. See Russell v. State, 749 S.W.2d 77, 78 (Tex.

Crim. App. 1988) (“It has long been held that it is reversible error for the trial court to give

instructions that refer to the credibility of the witnesses.”). Accordingly, we hold the trial court

did not err by denying Benavides’s request for an accomplice witness immunity instruction. We

therefore overrule this issue.

                             Section 20A.03 of the Texas Penal Code

       Finally, Benavides asserts that section 20A.03 of the Texas Penal Code is

unconstitutionally vague as applied to him. Specifically, he argues the term “human trafficking”

is ambiguous and turns his incidental action of driving each woman to the motel where they were

forced to have sex into the offense of “continuous trafficking.” Benavides argues this application


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departs from the traditional understanding of “human trafficking” and is contrary to the

Legislature’s intent.

       The State responds that the statute is not unconstitutionally vague because it clearly

prohibits Benavides’s conduct of transporting women to a new location and forcing them to have

sex. The State contends that even though Benavides’s conduct may not seem like a “common

form[] of human trafficking such as smuggling [a] person[] into the United States from another

country to force them into various forms of labor,” the statute’s language is sufficiently clear to

provide a person of ordinary intelligence a reasonable opportunity to know what conduct is

prohibited.

                                       Standard of Review

       Whether a statute is constitutional is a question of law we review de novo. Ex parte Lo,

424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We begin our review of the constitutionality of a

statute with the presumption that the statute is valid and assume the Legislature did not act

arbitrarily and unreasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.

Crim. App. 2002). “If we can determine a reasonable construction that will render the statute

constitutional, we must uphold the statute.” Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—

San Antonio 2013, pet ref’d). The burden rests upon the party who challenges the statute to

establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69.

                                         Applicable Law

       A statute is unconstitutionally vague if its prohibitions are not clearly defined. Wagner v.

State, 539 S.W.3d 298, 313 (Tex. Crim. App. 2018). A statute must provide a person of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits. Id. at 314. A statute

is not unconstitutionally vague merely because the words or terms used are not specifically

defined. Id. The words or terms must be read in context, and we must construe the statute in


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accordance with the rules of grammar and common usage. Id. “A statute satisfies vagueness

requirements if the statutory language conveys sufficiently definite warning as to the proscribed

conduct when measured by common understanding and practices.” Id. (internal quotations

omitted). In addressing an as applied challenge, we will consider whether the statute is vague as

applied to the defendant’s conduct. Id.

                                           Application

       Under section 20A.03 of the Penal Code, 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 Section 20A.02 [trafficking of persons] against

one or more victims.” TEX. PENAL CODE § 20A.03(a). Section 20A.02 provides that a person

commits the offense of trafficking of persons if the person knowingly “traffics another person

with the intent that the trafficked person engage in forced labor or services.” Id. § 20A.02(a)(1).

The statute further defines “traffic” to mean “transport, entice, recruit, harbor, provide, or

otherwise obtain another person by any means.” Id. § 20A.01(4).

       When construing these sections in accordance with the rules of grammar and common

usage, the statute clearly prohibits a person from transporting another person with the intent that

the transported person engage in forced services more than once in a 30-day period. See id.

§ 20A.03(a); Wagner, 539 S.W.3d at 314. The Legislature defined the term “traffic” to include

transporting a person, specifically defining what conduct constitutes “traffic” under section

20A.03(a). See TEX. GOV’T CODE ANN. § 311.011(a)(b) (mandating words and phrases with

legislative definitions shall be construed accordingly). An act like driving falls within the plain

meaning of the term “transport.” See Ritz v. State, 533 S.W.3d 302, 309 (Tex. Crim. App. 2017)

(Newell, J., concurring) (pointing out evidence that defendant drove minor to and from his home

to have sex constituted evidence of “transporting” under continuous trafficking statute). Based on


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the plain text of the statute, a person of ordinary intelligence is placed on notice that driving another

person with the intent to force the other person to engage in prostitution more than once during a

period of 30 days constitutes the offense of continuous trafficking. See Wagner, 539 S.W.3d at

314. This construction is reasonable and is consistent with our belief that the Legislature did not

act unreasonably in including the driving of another person to a location with the intent to force

that person to engage in sex in the definition of trafficking. See Wagner, 539 S.W.3d at 314; Ritz,

533 S.W.3d at 309.

        Here, the evidence shows Benavides drove women to a motel where he forced them to have

sex with him in exchange for his legal services. The record further reflects Benavides repeated

this behavior more than once over the course of 30 days. This conduct is prohibited under the

plain text of the continuous trafficking statute, and this result is not an absurd one. See Wagner,

539 S.W.3d at 314; Ritz, 533 S.W.3d at 309. Because Benavides failed to show that the continuous

trafficking statute is unconstitutionally vague as applied to him, we overrule his final challenge.

                                             CONCLUSION

        For the foregoing reasons, we affirm the trial court’s judgment of conviction.

                                                     Beth Watkins, Justice

DO NOT PUBLISH




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