Gabriel Lemell PRUDHOLM, Appellant, v. The STATE of Texas, Appellee.
Nos. 01-06-00749-CR, 01-06-00750-CR
Court of Appeals of Texas, Houston (1st Dist.).
Oct. 17, 2008.
Discretionary Review Refused Feb. 11, 2009. Discretionary Review Granted March 18, 2009.
274 S.W.3d 236
Nothing in Mokkala suggests that its holding is based on the premise that, had the claimants non-suited their 2003 claim prior to the expiration of the 120-day period, they would have been able to completely re-start the 120-day period. To the contrary, the holding in Mokkala is that “refiling a previously non-suited health care liability claim fails to restart the 120-day period.” Id. at 73. By footnote, the court simply recognized that, because the claimants’ non-suit was filed after the expiration of the 120-day period, it need not consider whether a non-suit taken during the 120-day period would have stopped the running of that period until the suit was re-filed, leaving available whatever days remained in the 120-day period. See id. at 68 n. 10. The point was noteworthy, there, because the claimants had missed the 120-day deadline by only one day.
In the instant case, appellant non-suited his original claim on day 96 of the 120-day period. A year later, he re-filed the claim and then filed an expert report 93 days later. Here, appellant seeks to completely re-start the 120-day period. Thus, the holding in Mokkala, that “refiling a previously nonsuited health care liability claim fails to restart the 120-day period,” is squarely applicable. See id. at 73.
We conclude that the 120-day period for appellant to serve an expert report on Dr. Foley was triggered when appellant filed his claim on July 14, 2005; that the 120-day period expired on November 11, 2005; and that appellant‘s expert report, filed over 17 months later, on January 4, 2007, was untimely. Because appellant failed to timely serve Dr. Foley with an expert report, we hold that the trial court did not err by dismissing with prejudice appellant‘s claims against Dr. Foley, which was required pursuant to section 74.351(b). See
Conclusion
We affirm the judgment of the trial court.
Carol M. Cameron, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
OPINION
SAM NUCHIA, Justice.
Appellant Gabriel Lemell Prudholm was convicted by a jury of compelling prostitution (trial court case number 1052194; appellate court case number 01-06-00749-CR) and sexual assault of a child (trial court case number 1045916; appellate court case number 01-06-00750-CR). See
Background
KB, the complainant, has lived with her grandmother, mother, aunts, and friends. Although a good student, KB had a difficult childhood. When KB was 14 and living with her aunt in Phoenix, Arizona, she took a bus by herself to the mall and got off at the wrong stop. A prostitute approached KB and took her to the apartment of a pimp, Jeremiah Crighton. Crighton gave KB alcohol and marihuana, took her to his home where he kept her for days without letting KB speak with her aunt, and allowed men to have sex with her. Crighton eventually took KB to California.
KB‘s aunt reported KB to the police as missing. Appellant, who was a partner with Crighton in the prostitution business, was contacted by the police about KB. Appellant called Crighton and told him to send KB back to Phoenix. Crighton did send her back, but later found KB in Phoenix, kidnapped her, and put her to work as a prostitute. KB eventually allowed appellant to be her pimp as she was upset with Crighton.
Appellant taught KB how to be a prostitute and decided how much money she had ly similar to elements of offense listed in to make each night. When KB broke appellant‘s rules, appellant punished KB by, among other things, hitting her with a belt, beating her, burning her, and having sex with her. Appellant had sex with KB hundreds of times.
Special Agent Patrick Fransen of the Federal Bureau of Investigation noticed KB working the streets. Agent Fransen, who was assigned to the Innocence Lost National Initiative, attempted over a period of months to get KB to admit she was a minor and to assist her in getting out of prostitution. After several arrests and conversations, KB eventually admitted she was a minor, asked for help, and identified appellant as her pimp.
Discussion
Sexual-assault-of-a-child conviction
In point of error one of the sexual-assault-of-a-child conviction, appellant argues the trial court erred in submitting, over objection, an enhancement paragraph in the charge concerning the California offense of sexual battery. Appellant claims that the California offense is not substantially similar to the offenses listed in the 2003 version of Penal Code section 12.42(c)(2)(B)(i), (ii), (iii), or (iv) and, therefore, could not be used to trigger a mandatory life sentence. We must review the trial court‘s interpretation of the California and Texas statutes on a de novo basis. See Kuhn v. State, 45 S.W.3d 207, 209 (Tex. App.—Texarkana 2001, pet. ref‘d).
The 2003 version of
(2) A defendant shall be punished by imprisonment in the institutional division for life if:
(A) the defendant is convicted of an offense:
§ 12.42(c)(2)(B)(i), (ii), (iii), or (iv)).
(i) under Section 22.021 or 22.011, Penal Code;
(ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or
(iii) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11 or 22.011, Penal Code; and
(B) the defendant has been previously convicted of an offense:
(i) under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal Code, punishable under Subsection (h) of that section;
(ii) under Section 21.11, 22.011, 22.021, or 25.02, Penal Code;
(iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;
(iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or
(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
2003
(i) sexual performance by a child (Penal Code section 43.25) and possession or promotion of child pornography (Penal Code section 43.26);
(ii) harassment by persons in certain correctional facilities; harassment of public servant (Penal Code section 22.11), sexual assault (Penal Code section 22.011), and prohibited sexual conduct (Penal Code section 25.02);
(iii) aggravated kidnapping (Penal Code section 20.04(a)(4)); and
(iv) burglary (Penal Code section 30.04(a)(4)).
Appellant was previously convicted under the following California statute for sexual battery:
Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.
The Court of Criminal Appeals has held the elements of another state‘s law to be substantially similar to the elements of an offense listed in
Appellant complains that the California statute permits prosecution for unlawfully restraining a person and touching the person‘s buttocks for purpose of sexual arousal, something that is not substantially similar to an offense listed in
Sexual Assault:
(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person‘s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person‘s consent; or
(C) causes the sexual organ of another person, without that person‘s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor....
Aggravated kidnapping:
(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
...
(4) inflict bodily injury on him or violate or abuse him sexually....
The problem with the State‘s argument is that it combines the elements from more than one of the offenses listed in
Compelling-prostitution conviction
In point of error one of the compelling-prostitution conviction, appellant argues the trial court erred in overruling his objection to the State‘s punishment argument regarding the application of the parole law. Appellant‘s objection, however, was to the State‘s argument regarding the effect of the parole law on his conviction for sexual assault of a child. Appellant did not object to the State‘s punishment argument regarding the application of the parole law for compelling prostitution. We hold that appellant has waived this point. See
In point of error two of the compelling-prostitution conviction, appellant contends the State made an improper punishment argument when the prosecutor stated the following:
The fact of the matter is I didn‘t really want to come to work today. I didn‘t want to come to work because I didn‘t want to have to deal with this filth. I‘m tired of it. It‘s disgusting. I didn‘t want to deal with—
Appellant specifically objected that the prosecutor was injecting personal opinions.
First, the State‘s misconduct was minor. The prosecutor‘s statements were not specifically directed at appellant, but were instead a comment on the case generally. The prosecutor did not offer her opinion on whether the appellant was guilty, whether the State had proved a necessary fact, or whether a particular witness was telling the truth. Instead, the prosecutor was generally commenting on the unpleasant nature of the case, something that was obvious to the jury. Had the prosecutor made her statements in the third person, there would be no error. Second, the trial court adopted no measures to cure the misconduct, as appellant‘s objection was overruled. Third, the strength of the evidence supporting appellant‘s guilt was high, so the misconduct did not affect the jury‘s finding that appellant was guilty. While the prosecutor should not have made direct statements of personal opinion, we hold that the argument did not have a substantial and injurious effect or influence on the jury‘s verdict and was, therefore, harmless.
We overrule point of error two.
Conclusion
We affirm the judgment in the compelling-prostitution case (trial court case number 1052194; appellate court case number 01-06-00749-CR). We reverse the judgment in the sexual-assault-of-a-child case (trial court case number 1045916; appellate court case number 01-06-00750-CR) and remand that case to the trial court for further proceedings regarding punishment. See
Justice KEYES dissenting in appellate court case number 01-06-00750-CR.
EVELYN V. KEYES, Justice, dissenting.
I respectfully dissent from reversal of the judgment against appellant Gabriel Lemell Prudholm in his sexual-assault-of-a-child case.1 See
With respect to his sexual-assault-of-a-child conviction and sentencing as an habitual sexual offender, appellant alleges—and the majority agrees—that the trial court erred in submitting an enhancement paragraph in the charge concerning the California offense of sexual battery because Texas law permits enhancement only by convictions for substantially similar offenses and the California offense is not substantially similar to only one of the offenses (i.e., “an” offense) listed in
The majority opines that the elements of the California sexual battery offense (
The majority points out that a conviction for sexual battery in California requires that the defendant have “touche[d] an intimate part of another person while that person is unlawfully restrained ... against the will of the person touched and ... for the purpose of sexual arousal,” but that the California law does not include pen-
The majority opines that “[t]he problem with the State‘s argument is that it combines the elements from more than one of the offenses listed in 2003 Penal Code section 12.42(c)(2) to create a substantial similarity between Texas and California law.” Prudholm v. State, 274 S.W.3d 236, 240. Concluding that “the plain wording of 2003 Penal Code section 12.42(c)(2)(B)(v), however, requires that the California statute contain elements that are substantially similar to the elements of an offense listed in subparagraph (i), (ii), (iii), or (iv),” the majority holds that the trial court erred in submitting the enhancement paragraph because the California sexual battery statute contains “elements that are substantially similar to the elements of multiple offense listed in subparagraph [12.42(c)(2)(B)](i), (ii), (iii), or (iv).”
The majority cites generally to Griffith v. State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003) and Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) for support, noting parenthetically that Texas law requires that “we review an unambiguous statute literally, unless doing so would lead to [an] absurd result that [the] legislature could not possibly have intended.” Prudholm, 274 S.W.3d at 241. I disagree both with the majority‘s conclusion and with its contention that Griffith supports its interpretation of
First, I see no significant distinction between the elements of sexual battery under California law and aggravated kidnapping under Texas law. I would conclude, therefore, that appellant‘s conviction under California law is directly parallel to a conviction under
In Griffith, relied upon by the majority, the Texas Court of Criminal Appeals was faced with a similar circumstance in that the defendant‘s punishment was enhanced pursuant to
In my view, reading the word “an” literally to exclude enhancement by a defendant‘s prior conviction for an out-of-state crime that parallels the elements of more than one Texas statute listed in
I would affirm the judgment in appellant‘s sexual-assault-of-a-child case (trial court cause number 1045916; appellate court cause number 01-06-00750-CR).