1. "Did Williams preserve his request for the lesser-included offense of human trafficking when he failed to identify any evidence supporting this request and denied committing any offense?"
2. "Did the court of appeals err by concluding that the lesser-included offense of human trafficking was a rational alternative to continuous human trafficking?"
3. "Did the court of appeals err by automatically reversing Williams’ conviction rather than applying the standard required by Almanza?"
Williams solicited an underage girl into prostitution, introduced her to a prostitute called “Kandy,” drove her around, and kept most of her earnings. The girl and Kandy appeared in ads together on backpage.com from December to the following August. Most were invoiced in Kandy’s name but some from July 20 to August 5 were in Williams’.
A police officer located the underage girl by posing as a customer and answering the ads. They arrested Williams. In his possession were cell phones linked to purchases for backpage ads and hotel rooms. He was indicted for continuous human trafficking, which requires transporting, enticing, recruiting, harboring, or otherwise obtaining the victim for a period longer than 30 days. At trial, he testified he was completely innocent. He denied using backpage.com and knowing that Kandy or the girl were engaged in prostitution. At the charge conference, he asked for four lesser-included offenses, but when the trial judge asked that defense counsel “refresh [the court’s] memory” about evidence warranting lessers, counsel responded that he believed there was such evidence “in substance,” noting, “It is what it is.” The trial court denied the request. Williams was convicted of continuous human trafficking.
On appeal, Williams challenged the absence of an instruction on human trafficking. The court of appeals held this was error. It held that a rational jury could have found Williams trafficked the girl but only for less than 30 days. It relied on evidence that (1) backpage invoices in Williams’ name did not span more than a month, (2) before the invoices in his name, Kandy sent the girl the text message “make sure [Williams] doesn’t see you,” and (3) Williams claimed his phone had been “merged” with Kandy’s phone prior to his arrest (which a rational juror could rely on to explain why Williams’ phone had a history of activity on backpage longer than 30 days). Relying on Saunders v. State, 913 S.W.2d 564 (Tex. Crim. App. 1995), it found some harm because the charge only allowed the choice of continuous trafficking and outright acquittal.
In the Court of Criminal Appeals, the State argues error was not preserved because, when requested, Williams failed to identify any evidence to support submission of a lesser. It contends this should be required given that part of the test for entitlement to a lesser requires an examination of the evidence. The State invokes caselaw requiring a party to explain why he is entitled to a ruling in order to preserve error.
The State also contends the evidence the court of appeals relied on does not establish a rational alternative to the charged offense. The invoices are only evidence of whose name was entered on the ad purchases and don’t establish that any transporting, enticing, recruiting, harboring, or obtaining of another was going on or that Williams was doing it. And nothing in the evidence as a whole (even with the ambiguous text message) supports a rational conclusion that Williams went from being wholly innocent to a human trafficker in such a short time. The State distinguishes Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App. 2016), where scrapping together evidence from the State and defense was permitted to create a rational alternative, because Bullock at least admitted to thievish intent, while Williams insisted on absolute innocence.
Finally, the State argues the court of appeals’s harm analysis should have reviewed the evidence, arguments of counsel, and other relevant information, as Almanza requires. The portion of Saunders suggesting that weak evidence of the lesser is not a consideration in a harm analysis is dicta, relies on a United States Supreme Court case that likely reaches no further than death penalty cases, and is contrary to Almanza.