Appellant, Timothy Duane Poor, challenges his convictions for continuous sexual abuse of a young child and compelling prostitution, both first-degree felonies. See TEX.PENAL CODE ANN. §§ 21.02(b), (h), 43.05(a)(2), (b) (West Supp. 2023). A jury convicted Appellant of both offenses and sentenced him to thirty-five years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice for the continuous-sexual-abuse conviction, and five years’ imprisonment for the compelling-prostitution conviction. On July 18, 2024, we issued an opinion affirming Appellant’s convictions. Poor v. State, 695 S.W.3d 32, 59 (Tex. App.—Eastland 2024, no pet. h.). On August 19, 2024, Appellant’s counsel moved to extend the deadline for filing a motion for rehearing, citing the Court of Criminal Appeals’ per curiam opinion in Turley v. State released on June 26, 2024. See Turley v. State, 691 S.W.3d 612 (Tex. Crim. App. 2024). We granted an extension, and Appellant filed his motion for rehearing on September 4, 2024. We deny Appellant’s motion for rehearing, withdraw our prior opinion and judgment, and substitute it with this opinion and judgment, again affirming Appellant’s convictions. Appellant originally raised five issues on appeal: (1) the trial court abused its discretion by denying his motion for new trial; (2) the trial court abused its discretion by failing to hold an evidentiary hearing on the issues raised in the motion for new trial; (3) his trial counsel was ineffective; (4) the trial court erred in excluding evidence of a witness’s pending criminal charge; and (5) the trial court’s charge included erroneous language. We previously sustained Appellant’s second issue, abated this appeal, and remanded the cause to the trial court to conduct an evidentiary hearing on Appellant’s motion for new trial. In our abatement order, we ordered the trial court to determine whether the State failed to disclose evidence in violation of Article 39.14 of the Texas Code of Criminal Procedure, and whether Appellant received ineffective assistance of counsel. The trial court held a hearing on January 24, 2024, and denied Appellant’s motion for new trial. We reinstated the case after receiving the supplemental reporter’s record and the supplemental clerk’s record and addressed Appellant’s four remaining issues as set forth below. In addition, we now address the complaint raised in Appellant’s motion for rehearing. Factual and Procedural History Appellant was charged with compelling prostitution and continuous sexual abuse of K.F.,[1] his stepdaughter, who was twelve years old at the time of trial. L.B. married Appellant when L.B.’s daughter, K.F., was four or five years old. In 2013, Appellant and L.B. had a son, R.P. Their tumultuous relationship, which included domestic violence and involvement by the Texas Department of Family and Protective Services (“the Department” or “TDFPS”),[2] ended approximately eleven years later. The Department removed K.F. and R.P. in early 2019 but returned them to L.B. in late 2019 or early 2020. In 2021, L.B. and Appellant recommenced cohabitating as a family. On April 26, 2021, L.B. found over twenty dollars hidden in K.F.’s room. When L.B. confronted K.F., K.F. eventually revealed that Appellant gave it to her for performing oral sex on him while L.B. was at work several days prior. L.B. called her mother, T.B., and took the children to T.B.’s home. T.B., L.B., and K.F. “had a talk” that evening, during which K.F. told them that, “more than once,” Appellant “had [K.F.] put her mouth over his penis,” and “put his private into her.” K.F. remembered that it started in 2019, when she was just nine years old, and that “it had been going on for a while.” According to K.F., Appellant would “bribe” her to engage in sexual acts by giving her money, toys, and other items, such as a piano. At trial, the State presented five witnesses: L.B., T.B., K.F., the forensic interviewer who interviewed K.F., and the nurse who performed K.F.’s sexual assault examination. Appellant testified in his defense and called five additional witnesses. The jury found Appellant guilty of continuous sexual abuse of a child and compelling prostitution. Appellant filed a motion for new trial alleging that the State had withheld material TDFPS records, and that he was denied effective assistance of counsel. In support of his motion, he attached the unsworn declaration of Sara Spector, one of his two trial attorneys. On remand at the hearing on Appellant’s motion for new trial, Appellant called three witnesses: Lacey Holloman, the prosecutor at trial, and Appellant’s two trial attorneys, David Phillips and Sara Spector. The trial court denied Appellant’s motion. Discussion I. Legal Sufficiency: Compelling Prostitution Appellant challenges, for the first time in his motion for rehearing, the sufficiency of the evidence to support his conviction for compelling prostitution, ostensibly relying on Turley, 691 S.W.3d 612. We generally review a challenge to the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Lee v. State, 676 S.W.3d 912, 915 (Tex. App.—Eastland 2023, no pet.). Under the Jackson standard, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Garcia v. State, 667 S.W.3d 756, 761 (Tex. Crim. App. 2023). In some cases, however, an evidentiary-sufficiency issue turns on the meaning of the statute under which the defendant has been prosecuted. Liverman v. State, 470 S.W.3d 831, 835–36 (Tex. Crim. App. 2015). In that circumstance, we ask if certain conduct actually constitutes an offense under the meaning of the statute. Long v. State, 535 S.W.3d 511, 519 (Tex. Crim. App. 2017). As with all statutory interpretation questions, this is a question of law that we review de novo. Chambers v. State, 580 S.W.3d 149, 156–57 (Tex. Crim. App. 2019). When interpreting a statute, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In doing so, we necessarily focus on the literal text of the statute in question and attempt to discern the fair, objective meaning of the text at the time of its enactment. Martin v. State, 635 S.W.3d 672, 677–78 (Tex. Crim. App. 2021). “We ordinarily give effect to that plain meaning unless application of the statute’s plain language would lead to absurd results that the Legislature could not possibly have intended, or the plain language is ambiguous.” Id. Here, Appellant contends that Section 43.05 of the Penal Code, the statute that criminalizes the act of compelling prostitution, does not contemplate the prosecution of offenders who victimize children younger than fourteen years of age. While citing to the Court of Criminal Appeals’ decision in Turley issued in June 2024, Appellant’s ill-founded argument mirrors the rationale expressed by the Fourteenth Court of Appeals’ 2020 Turley decision. See Turley v. State, 597 S.W.3d 30 (Tex. App.—Houston [14th Dist.] 2020), rev’d, 691 S.W.3d 612. Despite Appellant’s attempt to reverse his conviction based on an erroneous interpretation of Section 43.05, we address this important question: Does a child victim’s inability to legally consent to sexual conduct render the child incapable of factually committing the act of prostitution under Section 43.05? The seemingly obvious answer is “no, of course not.” As applicable to this case, a person commits the offense of compelling prostitution if he knowingly causes, by any means, “a child younger than 18 years to commit prostitution.” PENAL § 43.05. A person commits the act of prostitution by knowingly offering or agreeing to receive a fee from another to engage in sexual conduct. Id. § 43.02. By its clear, unambiguous language, a “child” protected by Section 43.05 is a person younger than eighteen. Id. § 43.05. Ordinarily, this would end our analysis, but recent judicial opinions require explicit clarification regarding the protection of children younger than fourteen under this statute. In 2010, the Texas Supreme Court held that juvenile offenders younger than fourteen could not be prosecuted for committing prostitution. In re B.W., 313 S.W.3d 818, 819, 826 (Tex. 2010). The court interpreted the legislature’s unequivocal removal of the consent defense for sexual abusers of children under fourteen as a declaration that such young children could not consent to sexual conduct as a matter of law. Id. at 830 (citing PENAL § 22.011). It emphasized that “[c]hildren are the victims, not the perpetrators, of child prostitution.” Id. at 826. Conspicuously absent from B.W. is any implication that children under fourteen cannot be victims of sexual offenses. Rather, the question in B.W. was “whether the Legislature . . . intended to permit prosecution of a thirteen-year-old child for prostitution[,] considering its specific pronouncement that a child under fourteen is legally incapable of consenting to sex with an adult.” Id. at 819 (emphasis added). Yet, the Fourteenth Court of Appeals, in misconstruing B.W., applied a categorical rule that, factually, “children under 14 cannot consent to sex.” See, e.g., Matter of T.V.T., 651 S.W.3d 1, 3 (Tex. App.—Houston [14th Dist.] 2019), rev’d, 675 S.W.3d 303 (Tex. 2023); Turley, 597 S.W.3d at 45. This holding ignores the B.W. court’s emphasis on the clear legislative intent to “provid[e] greater protection against sexual exploitation for underage children.” B.W., 313 S.W.3d at 821 (listing statutes imposing harsher punishments for offenders who commit sexual crimes against children, including “[c]ompelling a child under eighteen to commit prostitution”). Appellant urges that we apply and follow the Fourteenth Court of Appeals’ logic in its Turley decision to find that, because K.F. was younger than fourteen when Appellant bribed her to perform sexual acts, she could not have legally committed any act of prostitution. See Turley, 597 S.W.3d at 30–45. In 2015, Andrew James Turley posted an online advertisement offering a sexual encounter with his four-year-old daughter, S.E.B., in exchange for a fee. Turley, 691 S.W.3d at 615, 620. Law enforcement responded to the advertisement and rescued the victim, who had been drugged with a sleep aid in the moments leading up to the planned sexual encounter. Id. at 618, 620 (Newell, J., concurring). The Fourteenth Court of Appeals reliedonB.W.to reverse Turley’s conviction for compelling prostitution, finding that S.E.B., based on her age, “could not have committed prostitution because she lacked the mental capacity to consent to sexual conduct as a matter of law.” Turley, 597 S.W.3d at 44 (emphasis added). Although that court distinguished between legally recognized consent and consent “as a factual matter,” it concluded that S.E.B. was incapable of forming or “possess[ing] the requisite culpable mental state of the offense of prostitution.” Id. at 43–44. The Court of Criminal Appeals granted discretionary review, and likewise found the evidence of compelling prostitution insufficient; however, the court’s determination was not based on S.E.B.’s age. Turley, 691 S.W.3d at 618–19. Rather, S.E.B. did not commit prostitution because, due to law enforcement’s fortuitous intervention, no sexual conduct occurred. Id. 618–19. However, the court reformed Turley’s conviction to attempted compelling prostitution, noting that the victim’s “culpability under the prostitution statute is immaterial.” Id. at 619–20. Notably, the court observed that the compelling prostitution statute “focuses on [the appellant]‘s conduct in causing another person to commit prostitution.” Id. “In this sense,” it continued: [Section 43.05] bears some similarities to Penal Code Section 7.01(a)(1), which focuses on an actor’s responsibility for “an offense committed by the conduct of another” if he acts with the kind of culpability required for the offense and “causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense.” This provision plainly recognizes that an actor may cause an innocent person to engage in conduct that constitutes “an offense,” even if the innocent person lacks the requisite culpable mental state for the offense. Instead, that culpable mental state can be supplied by the person “causing” the other to engage in the conduct. Id. (emphasis in original). We agree that Section 43.05 should not be read so literally as to require proof that the child victim possessed the requisite culpable mental state—knowingly— under the prostitution statute. See U.S. v. Brown, 333 U.S. 18, 25–26 (1948) (“The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose.”); Ex parte Roemer, 215 S.W.3d 887, 900–01 (Tex. Crim. App. 2007) (Cochran, J., dissenting) (“[T]he purposes in drafting a statute control their interpretation rather than the application of algebraic formulae.”). And, because neither legal nor factual consent is an element of compelling prostitution of a child, misapplying B.W.‘s holding to a child victim is, effectively, an unauthorized judicial revision of the statute. We cannot invade the province of the legislature by holding that sexual offenders who compel prostitution of children under fourteen may escape prosecution under the statute. See TEX. CONST. art. III, § 1; see also Vandyke v. State, 538 S.W.3d 561, 573 (Tex. Crim. App. 2017) (“Our Constitution vests all lawmaking power in the Legislature of the State of Texas,” which includes “the sole authority to establish criminal offenses and prescribe punishments.”). Finally, we note the important distinction made in B.W. between a person’s commission of a crime and subsequent prosecution. We thought it self-evident that the two are not synonymous, as an exemption from prosecution does not dissolve one’s actions. In fact, as applicable here, children would not need a judicially created bar to prosecution for acts that they are factually incapable of committing. In other words, young children can form an agreement to engage in sexual conduct in fact, but may not be prosecuted for prostitution. Conflating a prosecutorial bar with the inability of “our society’s most vulnerable victims” to agree to engage in sexual conduct effectively “say[s] that a defendant should be rewarded because he picked a particular victim and crime.” Shumway v. State, 663 S.W.3d 69,79,83 (Tex. Crim. App. 2022) (strict application of the corpus delicti rule not required in sexual assaults against preverbal young children). Based on the aforementioned reasons, we conclude that the clear meaning of Section 43.05 does not foreclose Appellant’s conviction. Appellant does not dispute the sufficiency of the evidence establishing that eleven-year-old K.F. submitted to his sexual advances in exchange for money and toys. Therefore, the evidence is sufficient to sustain Appellant’s conviction for compelling prostitution. Accordingly, we overrule the issue raised in his motion for rehearing. II. Charge Error Because the resolution of Appellant’s first and third issues are partially contingent upon whether there was error in the trial court’s charge, we will address Appellant’s fifth issue first. In Appellant’s fifth issue, he asserts that the trial court’s charge impermissibly allowed a finding of guilt for continuous sexual abuse of a child, regardless of whether the alleged sexual acts occurred at least thirty days apart. A. Standard of Review Reviewing claims of charge error is a two-step process. Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). First, we must determine whether error exists. Id. Second, if there is error, we must decide whether the appellant was harmed and if the harm is sufficient to warrant reversal. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)); Ybarra v. State, 621 S.W.3d 371, 384 (Tex. App.—Eastland 2021, pet. ref’d). The applicable standard of review to be utilized for charge error depends on whether the claimed error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). The purpose of the trial court’s charge “is to inform the jury of the applicable law and guide them in its application to the case.” Delgado v. State, 235 S.W.3d 244,249 (Tex. Crim.App.2007) (quoting Hutch v. State,922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have the trial court provide the jury with instructions that correctly set forth the “law applicable to the case.” Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)). Because the trial court is obligated to correctly instruct the jury on the law applicable to the case, it is ultimately responsible for the accuracy of its charge and the accompanying instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial court errs, and the error is subject to the appropriate harm analysis. See Bell, 635 S.W.3d at 645. B. Split Among Intermediate Appellate Courts Appellant cites Turner v. State, 573 S.W.3d 455 (Tex. App.—Amarillo 2019, no pet.) to support the proposition that the charge erroneously permitted the jury to convict him of continuous sexual abuse of a child if it found that Appellant committed two or more acts within a thirty-day period, rather than at least thirty days apart. In Turner, the Seventh Court of Appeals criticized the language in Section 21.02 of the Penal Code in holding that the charge at issue was erroneous: [T]he State’s argument relies too heavily upon the assumption that the statute itself is an example of clarity. Broken down into its component parts, the application paragraph used in this case does nothing more than . . . requir[e] that (1) during a given period of thirty days or more (2) the defendant intentionally or knowingly committed two or more acts of sexual abuse. While someone with an understanding of the statute might argue that this provision is clear, the express language used does not make it clear that the first and last acts must occur thirty or more days apart. 573 S.W.3d at 462. The Sixth Court of Appeals aligns with the Seventh Court of Appeals in holding that the express language of the statute does not make clear that the first and last acts must occur thirty or more days apart. See Lewis v. State, No. 06-21-00021-CR, 2022 WL 630288, at *6 (Tex. App.—Texarkana Mar. 4, 2022, pet. ref’d) (mem. op., not designated for publication) (“[T]he jury could have easily read the instruction as directing it to find Lewis guilty if (1) there were thirty or more days between the dates in the indictment . . . and (2) during that time, Lewis sexually abused A.B. on two or more occasions.”). In both Lewis and Turner, however, the courts found that the appellants were not egregiously harmed by the charge error.[3] Lewis, 2022 WL 630288, at *6; Turner, 573 S.W.3d at 464. The First Court of Appeals in Smith v. State, 340 S.W.3d 41, 50–53 (Tex. App.—Houston [1st Dist.] 2011, no pet.) likewise held that the appellant was not egregiously harmed by the language: “on or about the 1st day of December, 2007, through the 1st day of September, 2008, which said time period being a period that was 30 days or more in duration.”[4] By contrast, the Third, Fourth, Fifth, Thirteenth, and Fourteenth Courts of Appeals have refused to find similar jury instructions erroneous. See Jones v. State, No. 05-22-00872-CR, 2024 WL 1757249, at *13–14 (Tex. App.—Dallas Apr. 24, 2024, no pet. h.) (mem. op., not designated for publication); Perez v. State, No. 13-22-00292-CR, 2024 WL 715326, at *5–7 (Tex. App.—Corpus Christi–Edinburg Feb. 22, 2024, no pet.) (mem. op., not designated for publication); Lewis v. State, No. 14-21-00691-CR, 2023 WL 4873306, at *5–8 (Tex. App.—Houston [14th Dist.] Aug. 1, 2023, pet. ref’d); Hernandez-Silva v. State, No. 03-19-00219-CR, 2020 WL 4726632, at *7–8 (Tex. App.—Austin Aug. 14, 2020, pet. ref’d) (mem. op., not designated for publication); McKinney v. State, No. 05-14-01350-CR, 2016 WL 3963369, at *16 (Tex. App.—Dallas July 18, 2016, pet. ref’d) (mem. op., not designated for publication); Quintero v. State, No. 04-13-00596-CR, 2015 WL 1914595, at *1–2 (Tex. App.—San Antonio Apr. 15, 2015, pet. ref’d) (mem. op., not designated for publication); Knowles v. State, No. 04-12-00180-CR, 2013 WL 1149063, at *5 (Tex. App.—San Antonio Mar. 20, 2013, pet. ref’d) (mem. op., not designated for publication).
