Kelly, Jennifer
PD-0159-15
| Tex. App. | Feb 11, 2015Background
- Jennifer Nicole Kelly was convicted by a jury of trafficking of persons and compelling prostitution based on evidence that she provided a bedroom, made phone calls, and translated for a Spanish‑speaking minor (M.M.) who engaged in prostitution at Kelly’s home. Sentences: 15 years (trafficking) and 10 years (compelling prostitution).
- The State alleged the conduct occurred between June 1 and July 31, 2012, while M.M. was still under 18; M.M. turned 18 on September 3, 2012.
- Key testimony: multiple residents and visitors described M.M. engaging in prostitution at the house; some witnesses said Kelly received modest payments (e.g., $5) for room use and that Kelly made calls and acted as translator at M.M.’s request.
- Defense evidence and several witnesses indicated M.M. prostituted of her own volition, that Kelly did not force or coerce her, and that prostitution also occurred elsewhere.
- The Tenth Court of Appeals affirmed both convictions (finding the evidence legally sufficient to show Kelly “caused” M.M. to commit prostitution and that Kelly “harbored”/trafficked M.M.), but deleted an assessment of attorney’s fees for lack of proof of ability to pay.
Issues
| Issue | Plaintiff's Argument (Kelly) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether evidence was sufficient to show Kelly "caused" a minor to commit prostitution under Tex. Penal Code § 43.05(a)(2) | "Caused" requires more than providing opportunity or knowledge; must show influence, persuasion, control, or that but‑for Kelly’s conduct the prostitution would not have occurred | "By any means" is broad; making calls, translating, and providing a room can constitute causing the prostitution; jury may infer but‑for causation | Court: Affirmed. Viewing evidence in light most favorable to verdict, jury could find Kelly’s calls, translation, and provision of a bedroom caused the acts. |
| Whether evidence was sufficient to prove trafficking of a child (Tex. Penal Code § 20A.02(a)(7)) | Insufficient to prove Kelly "trafficked" M.M.; M.M. did not live there and came via her mother; thus no harboring/trafficking | "Traffic" includes "harbor"; testimony showed Kelly gave shelter, food, clothing and opportunity for M.M., sufficient to prove harboring/trafficking | Court: Affirmed. Evidence supported a finding Kelly "harbored" M.M., satisfying trafficking element. |
| Whether the State proved the charged acts occurred while M.M. was under 18 | No direct proof that Kelly’s relevant acts (calls/translation) occurred before M.M.’s 18th birthday; therefore insufficient | Circumstantial evidence and reasonable inferences permit finding the acts occurred in the charged timeframe | Court: Affirmed. Jury reasonably could infer the relevant conduct occurred before M.M. turned 18. |
| Whether trial court erred by assessing attorney’s fees without evidence of ability to pay | Trial court previously found Kelly indigent and made no later finding of ability to pay; fees should not be assessed | State conceded error on fees | Court: Modified judgment to delete assessment of attorney’s fees. |
Key Cases Cited
- Waggoner v. State, 897 S.W.2d 510 (Tex. App.—Austin 1995) (interpreting "cause" under compelling‑prostitution statute and adopting approach that goes beyond mere opportunity)
- State v. Wood, 579 P.2d 294 (Or. Ct. App. 1978) (construing similar Oregon statute: providing opportunity alone is insufficient; influencing/persuading suffices)
- Ex parte Rieck, 144 S.W.3d 510 (Tex. Crim. App. 2004) (use of dictionaries for undefined Penal Code terms)
- Rhyne v. State, 620 S.W.2d 599 (Tex. Crim. App. 1981) (knowledge of an offense does not alone create liability)
- Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) (standards for reviewing circumstantial evidence and reasonable inferences)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal‑sufficiency standard: evidence viewed in light most favorable to verdict)