Ex parte Joseph Anthony Riley — Memorandum Opinion by Chief Justice Salas Mendoza

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-26-00030-CR
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Ex parte Joseph Anthony Riley
On Appeal from the 207th District Court
Comal County, Texas
Trial Court No. CR2020-275-001
M E MO RA N D UM OPI NI O N 1
Appellant Joseph Anthony Riley appeals the trial court’s denial of his petition for habeas
corpus. We affirm.
I. BACKGROUND
A. Trial and appeal
In February 2023, Riley was convicted of prostitution with a child younger than 18 years
of age. At trial, the State presented evidence that Riley approached Tommy2, a 16-year-old, and
1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code
§ 73.001. We follow the precedent of the Third Court of Appeals to the extent it might conflict with our
own. See Tex. R. App. P. 41.3.
2 Because the complainant was a minor, we use a pseudonym to protect his privacy. Tex. R. App. P. 9.10(a)(3).

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offered to pay him money in exchange for sexual acts.3 Riley v. State, No. 03-23-00137-CR, 2025
WL 567849, *1 (Tex. App.—Austin Feb. 21, 2025, pet. ref’d) (mem. op., not designated for
publication). The trial court sentenced Riley to ten years probated for ten years.
Riley appealed his conviction, arguing that the evidence was legally insufficient to support
the verdict and that the trial court abused its discretion in denying his motion for new trial (also
based on evidentiary sufficiency grounds). Id. at *2, 4. Specifically, he argued that to enhance the
crime from a Class A misdemeanor to a second-degree felony, the State had to prove that there was
an agreement between himself and Tommy to engage in sexual conduct. The Third Court of
Appeals disagreed and held that mutual agreement was not required and that there was sufficient
evidence to “support[] a reasonable inference that Riley thought he had agreed with Tommy to
engage in sexual conduct for money[.]” Id. at *4. The court of appeals affirmed the conviction. Id.
B. Application for writ of habeas corpus
After his unsuccessful appeal, Riley petitioned for a writ of habeas corpus, arguing that his
former attorney (at trial and on appeal) provided ineffective assistance of counsel because he did
not object to or raise error regarding the jury charge. Tex. Code Crim. Proc. art. 11.072 § 1
(allowing for habeas corpus petitions to be filed in the trial court in cases where “the applicant
seeks relief from an order or a judgment of conviction ordering community supervision”); Ex parte
McCullough, 966 S.W.2d 529, 532 n.1 (Tex. Crim. App. 1998) (en banc) (“[G]enerally, claims
about ineffective assistance of counsel . . . are cognizable on habeas corpus.”). The trial court
denied Riley’s application and he filed this appeal.
3 The Third Court of Appeals’ opinion contains a more detailed summary of the evidence presented at trial. Riley v.
State, No. 03-23-00137-CR, 2025 WL 567849, *1 (Tex. App.—Austin Feb. 21, 2025, pet. ref’d) (mem. op., not
designated for publication).

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C. Issues on appeal
Riley asserts that the trial court’s denial of his petition for habeas corpus was error because
his former attorney provided ineffective assistance by failing to object to the jury charge
(Issue One) or raise jury charge error on appeal (Issue Two).
II. ANALYSIS
A. Standard of review
To be entitled to habeas corpus relief based on the ineffective assistance of counsel, an
applicant must show both that (1) his attorney’s performance was deficient and (2) “a probability
exists, sufficient to undermine our confidence in the result, that the outcome would have been
different but for counsels’ deficient performance.” Ex parte White, 160 S.W.3d 46, 49 (Tex. Crim.
App. 2004) (citing Strickland v. Washington, 466 U.S. 668 (1984). “To successfully assert that trial
counsel’s failure to object amounted to ineffective assistance, the applicant must show that the trial
judge would have committed error in overruling such an objection.” Ex parte Martinez, 330
S.W.3d 891, 901 (Tex. Crim. App. 2011). Similarly, to show that the failure to raise the jury charge
issue on appeal amounted to ineffective assistance, Riley must show that “there is a reasonable
probability that, but for counsel’s failure to raise that particular issue, he would have prevailed on
appeal.” Ex parte Miller, 330 S.W.3d 610, 623 (Tex. Crim. App. 2009)
B. Jury charge
Riley was convicted of prostitution under former § 43.02 of the Penal Code. Pursuant to
that section, a person commits the offense of prostitution if he “knowingly offers or agrees to pay
a fee to another person for the purpose of engaging in sexual conduct with that person or another.”4
Tex. Penal Code § 43.02(b) (2019). The offense is enhanced from a Class A misdemeanor to a
4 The Penal Code has been amended and this offense, now titled solicitation of prostitution, is under § 43.021. All
references are to the Penal Code provision that was in effect at the time of Riley’s offense.

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second-degree felony “if the person with whom the actor agrees to engage in sexual conduct is:
(A) younger than 18 years of age . . . ; (B) represented to the actor as being younger than 18 years
of age; or (C) believed by the actor to be younger than 18 years of age.” Id. § 43.02(c-1) (2019)
(emphasis added). At issue in this appeal is the phrase italicized above. The Third Court of Appeals
held that Tommy did not have to agree to engage in sexual conduct and that there was sufficient
evidence that Riley agreed and believed that Tommy did. However, the court did not address the
precise issue before us today: whether the language “with whom the actor agrees” describes an
element of the enhanced offense that must be included in the application portion of the jury charge.
In Riley’s case, the abstract portion of the jury charge tracked the language of the Penal
Code. It instructed the jury that a person commits an offense if he “offers or agrees to pay a fee to
another person for the purpose of engaging in sexual conduct” and “the person with whom the
actor agrees to engage in sexual conduct is [] younger than 18 years of age[.]” Immediately below
the abstract portion, the application paragraph of the jury charge instructed:
Now bearing in mind the foregoing instructions, if you unanimously believe from
the evidence beyond a reasonable doubt, that the Defendant, Joseph Anthony Riley,
on or about the 12th day of February, 2020, in the County of Comal and State of
Texas, did then and there knowingly offer a fee to [Tommy] for the purpose of
engaging in sexual conduct, to-wit: sexual contact with the said [Tommy], a person
who was younger than 18 years of age, then you will find the Defendant “Guilty”
of Prostitution with a Child Younger than 18 Years of Age as charged in the
Indictment.
With this application paragraph, the charge required the jury to find that Riley was guilty if he
knowingly offered to pay Tommy to engage in sexual conduct and that Tommy was a person
younger than 18 years old, but it did not include the statutory language that the person who is under
18 years old is “the person with whom the actor agrees to engage in sexual conduct.”
Riley argues that an agreement is an element of the enhanced offense that the jury was
required to find to render a guilty verdict. Although the Third Court of Appeals held that no mutual

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agreement was required to elevate the offense, Riley argues that the jury was still required to find
that he agreed to engage in sexual conduct with Tommy. Had his former attorney objected to the
charge, Riley reasons, the trial court would have erred in overruling it and, had the attorney raised
the issue in his direct appeal, his conviction would have been reversed. Alkayyali v. State, 713
S.W.3d 780, 783 (Tex. Crim. App. 2025) (“If a jury charge fails to require that the State prove
every contested element of an offense beyond a reasonable doubt, does this result in egregious
harm? Yes.”). We disagree with the premise underlying Riley’s argument: that an “agreement” is
an element required to enhance the offense from a misdemeanor to a second-degree felony.
An element of an offense means “(A) the forbidden conduct; (B) the required culpability;
(C) any required result; and (D) the negation of any exception to the offense.” Tex. Penal Code
§ 1.07(22). The forbidden conduct in the non-enhanced offense of prostitution is offering or
agreeing to receive a fee to engage in sexual conduct. Tex. Penal Code § 43.02(a), (b). The question
before us is whether the word “agrees” in the phrase “the person with whom the actor agrees to
engage in sexual conduct” is forbidden conduct that enhances the offense to a second-degree
felony.
“Words and phrases are to be read in context and construed according to the rules of
grammar and common usage.” Tex. Gov’t Code § 311.011(a); Ludwig v. State, 931 S.W.2d 239,
241 (Tex. Crim. App. 1996) (en banc). The word “agrees” is part of the larger phrase “whom the
actor agrees to engage in sexual conduct.” That phrase is a restrictive clause; it limits and modifies
the antecedent noun “person” to specify and restrict which person must be under 18 years old.
BRYAN GARNER, THE REDBOOK: A MANUAL ON LEGAL STYLE § 11.20, at 211–12 (4th ed. 2018);
A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 722 (Tex. App.—El Paso 2022, no pet.). Without
specification, the statute would be unclear as to whose age matters—the actor, the person being
solicited, or some third-party intermediary. The clause serves to describe which person’s age

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triggers the felony enhancement rather than establishing a separate conduct element beyond the
base offense of offering or agreeing to pay for sexual conduct.
The application paragraph in the jury charge does not include the restrictive clause from
the statute to describe which person needed to be under 18 for the felony enhancement. It did not
need to because instead, it specified which person the jury had to find was under 18 by using the
complainant’s name (“sexual contact with the said [Tommy] a person who was younger than 18
years of age.”)
Because the word “agrees” is not an element but only part of a restrictive clause to describe
and limit what person it referred to, the failure to include that clause in the application paragraph
was not error. Because it was not error, Riley’s trial counsel did not provide ineffective assistance
of counsel by failing to object. We overrule Riley’s first issue. For the same reasons, his counsel
also did not provide ineffective assistance by failing to raise the issue on appeal. We overrule
Riley’s second issue.
III. CONCLUSION
The judgment of the trial court is affirmed.
MARIA SALAS MENDOZA, Chief Justice
October 21, 2026
Before Salas Mendoza, C.J., Palafox and Soto, JJ.
(Do Not Publish)