TURLEY, ANDREW JAMES v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0262-20 & PD-0263-20
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ANDREW JAMES TURLEY, Appellant

v.

THE STATE OF TEXAS

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On State’s Petitions for Discretionary Review
From the Fourteenth Court of Appeals
Harris County
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YEARY, J., filed a dissenting opinion.

Having concluded that the court of appeals was correct in this
case to hold the evidence legally insufficient to support Appellant’s
convictions for compelling prostitution and trafficking of persons, the
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Court today proceeds to reform the judgments to reflect convictions for
a lesser-attempted commission of these offenses. Majority Opinion at
10−12. For the following reasons, I disagree with this disposition.
I. REMAND FOR REFORMATION DECISION
This is a State’s petition for discretionary review, for starters, and
the State does not argue (even in the alternative) that the judgments
should be reformed to reflect a conviction for attempted commission of
the offenses. And even if the State had made such an argument, the
better response would be, in any event, to remand the cases to the court
of appeals for that court, in the first instance, to decide whether
reformation is permissible under Thornton v. State, 425 S.W.3d 289
(Tex. Crim. App. 2014), after supplemental briefing on that issue from
the parties. 1 It is not at all clear to me that the Court’s abbreviated
Thornton analysis is correct. So I would remand this case to allow
briefing and so that our consideration of the issue, later, if further

1 Under Thornton, before it may reform a judgment to reflect conviction

for a lesser-included offense, a reviewing court:

must answer two questions: 1) in the course of convicting the
appellant of the greater offense, must the jury have necessarily
found every element necessary to convict the appellant for the
lesser-included offense; and 2) conducting an evidentiary
sufficiency analysis as though the appellant had been convicted
of the lesser-included offense at trial, is there sufficient evidence
to support the conviction? If the answer to either of these
questions is no, the court of appeals is not authorized to reform
the judgment. But if the answers to both are yes, the court is
authorized—indeed, required—to avoid the “unjust” result of an
outright acquittal by reforming the judgment to reflect
conviction for the lesser-included offense.

425 S.W.3d at 300.
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discretionary review is even necessary, might benefit “from a carefully
wrought decision from the court of appeals” on the question. McClintock
v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014).
It is true that Thornton declared that a court of appeals is
“required” to reform a judgment to reflect conviction for a lesser-
included offense whenever its criteria for doing so are met. 425 S.W.3d
at 300. And this Court has done so when acting in its capacity as an
appellate court rather than a discretionary review court. See Griffin v.
State, 491 S.W.3d 771, 776−77 (Tex. Crim. App. 2016) (reforming
judgment of conviction for capital murder to reflect conviction for
murder when the evidence failed to establish the aggravating element).
Also, where a court of appeals has erroneously declared the evidence
sufficient to establish the charged offense, and this Court, on
discretionary review, has overturned that judgment—and the State has
explicitly argued that the Thornton criteria for reformation are plainly
met—we have reformed the judgment ourselves. Nowlin v. State, 473
S.W.3d 312, 319 (Tex. Crim. App. 2015).
But more often, in our capacity as a discretionary review court,
when we have reversed a court of appeals’ conclusion that the evidence
was sufficient to support the greater charged offense, the Court has
remanded the case to the court of appeals to conduct the Thornton
reformation analysis in the first instance. See Lang v. State, 561 S.W.3d
174, 184 (Tex. Crim. App. 2018) (“The parties have not briefed this issue
in this Court, and we decline to address this question in the first
instance.”); Walker v. State, 594 S.W.3d 330, 340 (Tex. Crim. App. 2020)
(where the court of appeals erroneously concluded that the evidence was
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sufficient to support the charged offense, “the proper course of action is
to remand” for the court of appeals to conduct the Thornton analysis);
Edwards v. State, 666 S.W.3d 571, 577 (Tex. Crim. App. 2023) (“Because
the parties have not had the opportunity to brief [the question of
reformation under the Thornton criteria], and the court of appeals has
not had occasion to consider it, we remand the cause for further
proceedings consistent with this opinion.”).
This is in keeping with our general posture of remanding to the
court of appeals to render a “decision” in the first instance whenever our
disposition of an issue on discretionary review has raised new questions
not previously addressed by the court of appeals. See, e.g., Menefee v.
State, 287 S.W.3d 9, 18−19 (Tex. Crim. App. 2009) (remand for the court
of appeals to address extant issues of procedural default and harm when
this Court reversed its “decision” on the merits). It is true that, “when
the proper disposition of an outstanding issue is clear, [the Court] will
sometimes dispose of it on discretionary review in the name of judicial
economy.” Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014)
(citing Davison v. State, 405 S.W.3d 682, 691−92 (Tex. Crim. App.
2013)).
Here, the court of appeals concluded that the evidence was
insufficient to support Appellant’s convictions, and today this Court
affirms that conclusion. But the court of appeals did not conduct
Thornton’s “required” analysis to decide whether reformation of the
judgment to reflect conviction for a lesser-included offense was
appropriate. The State has not asked us in its petition for discretionary
review either to conduct that analysis ourselves or remand it for that
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analysis. In my view, the Court’s conclusion today that reformation is
appropriate is—at best—questionable. At most, then, I would remand
the cases so that the court of appeals can address and “decide” that issue
in the ordinary course of the appellate process, with input from the
parties.
II. REFORMATION IS NOT CLEARLY PROPER
Between the two of them, the majority opinion and the
concurrence in the court of appeals came up with three reasons why the
evidence was legally insufficient. The majority addressed the offense of
compelling prostitution first. Turley v. State, 597 S.W.3d 30, 38−45 (Tex.
App.—Houston [14th Dist.] 2020). This offense requires the actor to:
• “knowingly”
• “cause[]”
• “a child younger than 18 years”
• “to commit prostitution[.]”

TEX. PENAL CODE § 43.05(a)(2). “Prostitution” for purposes of this
provision explicitly “means the offense defined in Section 43.02” of the
Penal Code. TEX. PENAL CODE § 43.01(2). Therefore, in order to commit
the offense of compelling prostitution, an actor must:
• “knowingly”
• “cause[]”
• a child under 18 to
• “knowingly”
• “offer[] to engage, agree[] to engage, or engage[] in
sexual conduct”
• “in return for receipt of a fee[.]”

TEX. PENAL CODE § 43.02(a)(1).
Relying on an opinion from the Texas Supreme Court, the court
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of appeals majority held, first of all, that the child at issue in this case,
S.E.B., being younger than 14 years of age, simply could not commit the
offense of prostitution because she lacked the capacity, as a matter of
law, to commit prostitution. Turley, 597 S.W.3d at 43−44 (citing In re
B.W., 313 S.W.3d 818 (Tex. 2010)). Second, and alternatively, the
majority in the court of appeals held that, in any event, because the child
was asleep during the incident, she could not have formulated the
requisite intent to commit prostitution, since she could not have
knowingly offered to engage, agreed to engage, or actually engaged in
sexual conduct for a fee. Id. at 45. For essentially the same two reasons,
the majority then likewise found the evidence insufficient to support
Appellant’s conviction for trafficking of persons under Section
20A.02(a)(7)(H). Id. at 45−46; TEX. PENAL CODE § 20A.02(a)(7)(H). 2
Chief Justice Frost, in a concurring opinion, preferred a third reason to
declare the evidence insufficient. She took the position that the evidence
was insufficient to show that the sleeping child, in any event, offered,
agreed, or engaged to do anything, knowingly or otherwise. Id. at 47−49
(Frost, C.J., concurring).
Today, without passing on the other two theories for why the
evidence is insufficient, the Court endorses Chief Justice Frost’s view of
why the evidence was insufficient to support the convictions for
compelling prostitution and trafficking of persons. See Majority Opinion
at 7 (“We agree with Chief Justice Frost’s position in so much as the

2 At the time of the offense in 2015, Section 20A.02(a)(7)(H) read: “A
person commits an offense 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 . . . Section 43.05 (Compelling Prostitution)[.]”
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central sufficiency question in this case can be resolved through a more
straightforward analysis than that undertaken by the court of appeals’
majority opinion.”); id at 9 (“[W]e agree with Chief Justice Frost that . .
. there is no evidence to show that [S.E.B.] actually committed any of the
requisite acts to establish the commission of prostituion.”). So far, so
good.
From there, however, the Court goes on to declare that the
evidence is nevertheless sufficient to support conviction for attempted
commission of these same two offenses, compelling prostitution and
trafficking. Majority Opinion at 10−12. Without making specific
reference to the Thornton criteria for analyzing whether reformation is
justified, 3 the Court simply observes: “[T]he record clearly establishes
that Appellant intended to cause S.E.B. to commit prostitution by
causing her to engage in sexual conduct in return for the $1,000
payment.” Id. at 11. But wait a minute: I thought it had already been
established that the reason the evidence did not support conviction for
the greater offenses was that it did not show that S.E.B. herself offered
to, agreed to, or engaged in sexual conduct for a fee. How can Appellant
nevertheless be guilty of attempting to commit these offenses by virtue
of offering to, agreeing to, or causing her to engage in sexual conduct for

3 With respect to the first of the two Thornton questions, whether the

jury verdict necessarily also embraced every element of the lesser-included
offense, particularly as it relates to the lesser-included offense of attempt, a
reviewing court in this case would have to find as follows: that by its guilty
verdict for the greater offense, the jury necessarily also determined that 1) with
specific intent to knowingly cause a child younger than 18 years to commit
prostitution, 2) the defendant did an act amounting to more than mere
preparation that 3) tended but failed to result in causing the child to commit
prostitution. See Thornton, 425 S.W.3d at 300−01.
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a fee himself? If that is all it takes to prove that S.E.B. herself committed
prostitution, then I fail to see how the evidence was insufficient to
convict Appellant of the greater charged offenses!
It seems to me that the evidence is fatally lacking both with
respect to the charged offenses and the attempt to commit those
offenses. Appellant cannot be said to have committed an act amounting
to more than mere preparation that tends but fails to effect the
commission of the offense intended—TEX. PENAL CODE § 15.01(a)—when
he demonstrably lacked the specific intent to cause S.E.B.—herself—to
commit prostitution by somehow causing her to knowingly offer to, agree
to, or engage in, sexual conduct for a fee. The seemingly uncontradicted
evidence in this case shows that Appellant knew that S.E.B. was asleep
because he drugged her himself, and so he could not possibly have
harbored a specific intent that she commit any of the acts necessary to
constitute prostitution, much less that she have done so knowingly. He
had no specific intent to commit either of the greater offenses, which
both require that S.E.B. commit prostitution, because he never had any
intention to cause S.E.B., herself, to knowingly offer to, agree to, or
actually engage in, sexual conduct for a fee. A stout argument is thus
available that Appellant can be guilty neither of the charged offenses nor
the attempt to commit those offenses under the facts of this case.
The Court attempts nevertheless to declare Appellant clearly
guilty of the lesser offenses by virtue of a novel application of the parties
principle in Section 7.02(a)(1) of the Penal Code. Majority Opinion at
11−12 (citing TEX. PENAL CODE §7.01(a)(1)). Appellant is criminally
responsible for S.E.B.’s conduct for the lesser offense, the Court believes,
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because acting with the intent that she commit prostitution, he caused
her to engage in sexual conduct for a fee. Id. But “conduct” means “an
act . . . and its accompanying mental state.” TEX. PENAL CODE § 1.07(10).
Arguably, then, to be guilty as a party under Section 7.02(a)(1),
Appellant would still have had to cause her to knowingly engage in that
conduct, which he knew at the time she could not. And, in any event, it
is not clear, even to the Court, why this theory would not also render
Appellant liable for the greater offense. See Majority Opinion at 12
(“Whatever implications this principle may have for the greater offenses
charged in this case . . .”). The uncertainties involved only serve to
support my view that the answer is far from clear, and the Court should
remand for briefing and an opinion from the lower court.
There may also remain a question whether Appellant could
harbor a specific intent to commit the charged offenses, for purposes of
reforming the judgments to show convictions for attempt, if the court of
appeals majority is also correct that S.E.B. simply could not commit
prostitution as a matter of law. 4 Perhaps that is an argument that
implicates the so-called doctrine of impossibility, and it might become
necessary for a reviewing court implementing the Thornton criteria to
decide whether the facts of this case show “legal impossibility” versus
“factual impossibility”—a slippery distinction indeed. See Chen v. State,
42 S.W.3d 926, 929 (Tex. Crim. App. 2001) (observing that “the line

4 If any one of the three reasons the combined court of appeals opinions

articulated for finding the evidence insufficient to support conviction for the
greater offenses holds water, it seems to me that it would be necessary to decide
with respect to each reason whether the evidence can nevertheless support
conviction for the attempts under a Thornton analysis. The Court today seems
to limit its analysis to Chief Justice Frost’s rationale.
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between legal and factual impossibility is sometimes difficult to draw”);
Lawhorn v. State, 898 S.W.2d 886, 891−92 (Tex. Crim. App. 1995)
(plurality opinion) (distinguishing legal and factual impossibility); id. at
893−96 (Meyers, J., dissenting) (refusing to “accept that there is a
meaningful difference between legal and factual impossibility”).
III. CONCLUSION
My ultimate point is that none of this is nearly as straightforward
as the Court’s opinion today seems to deem it. Rather than decide it in
such an abbreviated fashion, without input from the parties or a
“decision” on the question from the court of appeals, I would not reform
the judgments without first remanding the cases to the lower court with
instructions to resolve the Thornton reformation question in the first
instance. Because the Court does not, I respectfully, dissent.

FILED: June 26, 2024
PUBLISH