Austin v. State

794 S.W.2d 408, 1990 WL 64058

• Court: Court of Appeals of Texas
• Decided: June 6, 1990
• Docket: 3-89-176-CR
• Status: Published

Opinions

JOHN F. ONION, Jr., Assigned Justice.

This is an appeal from a conviction for prostitution. Tex.Pen.Code Ann. § 43.02(a)(1) (1989). At the conclusion of the bench trial, the trial court assessed appellant’s punishment at sixty (60) days confinement in the county jail, and at a fine of $200.00. The imposition of the sentence was suspended, and the appellant was placed on probation for 180 days subject to certain conditions of probation.

In her first point of error, appellant contends that the “trial court erred in admitting into evidence Officer Hutto’s personal opinion, as to the meaning of the term ‘Swedish Deep Muscle Rub.’ ”

John Hutto testified that, at the time of the trial, he had been employed as an Austin City police officer for approximately four years, and that on the date in question he and other officers were involved in an investigation of massage parlors and modeling studios. He related that at the Satin Spa the appellant took him to a room where the prices were listed on a sign for “Swedish Deep Muscle Rub.” He observed the sign, and testified he had experience with that kind of terminology. When asked if the term had any “meaning” to him he answered: “Based on my training those words ‘Swedish Deep Muscle Rub' are often key words for prostitution.” After objections were overruled, Hutto was asked what in his opinion was meant by the terminology, and he replied: “ ‘Swedish Deep Muscle Rub’ in this type of massage parlor is often a catch phrase for prostitution.”

First, appellant contends the testimony was inadmissible because it was hearsay. The only hearsay objection at trial to which appellant calls our attention followed Hutto’s simple affirmative answer to the question of whether he had “had any prior experience with that kind of terminology.” The objection was: “That calls for hearsay to the facts of this case.” The trial court properly overruled the objection, as hearsay was not involved. See Tex.R. Cr.Evid. Ann. 801(d) (Pamp.1990).

Next, appellant argues the testimony was admitted in violation of Rule 701 of the Texas Rules of Criminal Evidence. Appellant contends the State made no effort to qualify Officer Hutto as an expert witness; therefore, the standard for his testimony is that of Rule 701 (opinion testimony by lay witnesses). Appellant did object on the ground of lack of personal knowledge, although she did not invoke Rule 701 by name. The court overruled the objection noting that it was “opinion testimony.”

In Goode, Wellborn and Sharlot, 33 Texas Practice-Guide to the Texas Rules of Evidence: Civil and Criminal § 701.2, p. 491-94, it is stated:

Given the conceptual difficulties inherent in the common-law rule against lay opinion and the mischievous results it produced, the drafters by Rule 701 opted for a more pragmatic approach. Adopted verbatim from the original Federal Rule 701, it provides that a lay witness may testify in the form of opinions or inferences when the opinions or inferences (1) are rationally based on the witness’s perception and (2) help the factfinder to understand clearly the testimony or determine a fact in issue. The first requirement incorporates the personal knowledge requirement of Rule 602¹....

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Rule 701 seeks to insure that the trier of fact is presented with testimony in the form most likely to help the factfinder resolve the contested issues....

By employing the functional “helpfulness” standard, Rule 701 leaves much to the discretion of the trial judge. Whether preferred opinion testimony is rationally based and helpful will be a function of the particular facts of the case and the trial judge will almost invariably be in the best position to make this determination. Therefore, the trial court’s decision to admit or exclude lay opinion testimony should be overturned only when the trial judge has abused his discretion.

Under pre-rules practice, the general rule against receiving opinion testimony could be overcome by a lay witness who was presenting a “short-hand rendition” of the facts in opinion form that would assist the fact finder. There is no significant departure from this “short-hand rendition” practice. See H. Wendorf & D. Schlueter, Texas Rules of Evidence Manual, at 266-68 (Mechie 2d ed. 1988) [hereinafter “Wendorf & Schlueter”]. Rule 701 retains much of the pre-rules precedent, but has broadened the lay opinion testimony procedure slightly. Gross v. State, 730 S.W.2d 104, 106 n. 2 (Tex.App.1987, no pet.); Wendorf and Schlueter, at 268.

Anguiano v. State, 774 S.W.2d 344 (Tex.App.1989, no pet.), involved a prosecution under § 43.02(a)(1) of the Penal Code as does the instant case. In Anguiano, the officer was asked whether his dialogue with the prostitution defendant meant she was offering or agreeing to engage in sexual conduct. He answered “agreeing.” His opinion or response was held admissible under Rule 701.

In Williams v. State, 760 S.W.2d 292 (Tex.App.1988, pet. ref’d), it was held that the officer’s testimony regarding the common use of “vice grips” to assist in stealing cars was admissible under Rule 701 as opinion evidence based on the officer’s personal observations and experience as a police officer.

We conclude in the instant case that Officer Hutto’s testimony was admissible as opinion testimony under Rule 701. The State argues that the evidence was admissible under Rule 702 (expert testimony) of the Texas Rules of Criminal Evidence. It calls attention to Officer Hutto’s training, experience, and several years of service as a police officer. Certainly a witness may qualify to give testimony under both Rules 701 and 702. Wendorf and Schlueter, at 271-272; see generally Sutton, Article VII: Opinions and Expert Testimony, 20 Hous. L.Rev. 445, 453 (1983).

In Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978), involving a prosecution for aggravated promotion of prostitution, a police officer was held qualified to testify, based on his experience, that 2,000 index cards seized were “trick files” that listed clients, and that were generally used in prostitution enterprises.

In Barnes v. State, 634 S.W.2d 25 (Tex.App.1982, no pet.), there was no abuse of discretion in permitting an undercover agent, based on his experience, etc., to testify that a person caught with ten grams of methamphetamine was usually a dealer, and to express his opinion as to the probable purpose of the substance contained in four packets taken from the defendant. See also Logan v. State, 448 S.W.2d 462 (Tex.Cr.App.1969); Selvidge v. State, 171 Tex.Crim. 140, 345 S.W.2d 523 (1961).

The qualification of an expert witness is generally left to the sound discretion of the trial court. There is no hard and fast rule as to the extent of knowledge required to qualify a witness as an expert in a given field. Brotherton v. State, 666 S.W.2d 126 (Tex.App.1983, pet. ref'd). The trial court’s decision to admit or exclude the proposed opinion testimony will not be disturbed on appeal unless a clear abuse of discretion is shown. Steve v. State, 614 S.W.2d 137 (Tex.Cr.App.1981).

Although the testimony could have been better developed, we conclude that Officer Hutto’s testimony was also admissible under Rule 702. Appellant’s first point of error is overruled.

In her second point of error, appellant contends the evidence was insufficient to support her conviction. The elements of the offense under § 43.03(a)(1) are:

(1) A person

(2) knowingly

(3) offers or agrees to engage in sexual conduct

(4) in return for a fee payable to the actor.

Mattias v. State, 731 S.W.2d 936 (Tex.Cr.App.1987); Raven v. State, 533 S.W.2d 773 (Tex.Cr.App.1976).

The complaint and information in the instant case alleged in pertinent part that the appellant on or about April 30, 1988, “did then and there knowingly agree to engage in sexual conduct for a fee, to wit: the said Kimberli Austin agreed to have sexual intercourse with J. Hutto for a fee.”

Thus, the State had the burden to prove beyond a reasonable doubt that (1) Kimber-li Austin (2) did knowingly (3) agree to engage in sexual conduct, to wit: sexual intercourse with J. Hutto (4) for a fee.

In the instant bench trial there was only one witness — Officer John Hutto of the Austin Police Department. He related that on April 30, 1988, he and other officers were in the process of investigating massage parlors and modeling studios; that on that date he went to the Satin Spa in Travis County. Hutto entered a living room area where there was a male and two females. The male told Hutto to select one of the females, and Hutto selected the appellant Austin. She led him down a hall to a room where there was a sign or signs as to the prices for “Basic Body Rub” and “Swedish Deep Muscle Rub.” The appellant informed Hutto the “Basic Rub” was a “fingertip” massage, and the “Swedish Deep Muscle Rub” was a “more thorough and stimulating rub.” The highest cost of the former was $60.00 for 60 minutes and the highest cost of the latter was $130.00 for 60 minutes. Hutto, a veteran of several years with the Austin Police Department, had experience with the terminology and understood that “Swedish Deep Muscle Rub” was “a catch phrase” or “key words” for prostitution. Hutto gave appellant $140.00 for the highest price “Swedish” rub. Appellant left the room and returned with his change of $10.00. They both then disrobed. The nude appellant laid face down on the bed and asked Hutto to massage her back, which he did for ten minutes. Then the appellant gave Hutto a massage on his back, legs, and buttocks for ten minutes. Appellant then asked Hutto if he would “like to end the session.” He pretended not to understand, protesting that he had only been there twenty minutes, and had paid for an hour. Appellant repeated her inquiry. Hutto then asked if they ended the session could he “get more than just a rub.” Appellant said “yes,” and Hutto inquired whether he needed to pay her more money or give her a tip. Appellant replied “no, it’s all taken care of.”

The record then reflects on redirect examination:

A: And after she said it was taken care of I asked her what I could get. And she asked me what did I want. And I told her a blow job or maybe a f_k. And she said “Choose one. It’s one or the other.”

Q: Was that — was either the blow job or the f_k included in the $130.00.

A: That was my understanding. Because she said that it was taken care of when I asked her if I needed to pay more.

* * # * * *

A: Well, we agreed on sexual intercourse and she — she—I asked her if she had some protection I could use, and she said “Yes” and got a condom out of her purse.

* * * * * *

Q: Did the defendant agree to engage in sexual conduct with you for a fee.

A: Yes

Q: And specifically what was that sexual conduct?

A: Sexual intercourse

The trial judge in a bench trial is the sole trier of the facts, the credibility of the witnesses and the weight to be given to their testimony, and may accept any part of or all the testimony given by the witnesses. Wright v. State, 603 S.W.2d 838 (Tex.Cr.App.1980); Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App.1978); Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978). See also Williams v. State, 692 S.W.2d 671 (Tex.Cr.App.1984); Coe v. State, 683 S.W.2d 431 (Tex.Cr.App.1984).

Reconciliation of conflicts and inconsistent testimony is for the trier of fact. Jackson v. State, 672 S.W.2d 801 (Tex.Cr.App.1984). The trier of fact may believe or disbelieve all or any part of a witness' testimony, and may accept one part of a witness’ testimony and reject the remainder. Williams, 692 S.W.2d 671; Boughton v. State, 631 S.W.2d 818 (Tex.App.1982, pet. ref’d). Conflicts will not call for reversal if there is enough credible testimony to support the conviction. Bowden v. State, 628 S.W.2d 782 (Tex.Cr.App.1982).

And certainly the credibility of a witness is a matter for the trier of fact rather than for the Court of Appeals. Aquino v. State, 710 S.W.2d 747 (Tex.App.1986, pet. ref’d); Foster v. State, 687 S.W.2d 65 (Tex.App.1985, pet. ref'd); Westfall v. State, 663 S.W.2d 664 (Tex.App.1983, pet. ref’d). See also United States v. Jennings, 726 F.2d 189 (5th Cir.1984); Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).

The standard for review of the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the judgment of the court (in a bench trial), any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson, 672 S.W.2d at 803; Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App.1986). The standard remains the same for direct and circumstantial evidence cases. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983) (opinion on rehearing).

Appellant agrees that the prosecution established all the elements of the offense except one. Appellant acknowledges the proof showed she agreed to engage in sexual intercourse, but argues the evidence does not show that she did so “for a fee.” She contends the $130.00 “session” ended before she agreed to the sexual intercourse, that she “was no longer being compensated for her personal services, and that she made no effort to obtain compensation for any sexual activity.” The State counters that the evidence showed that Hutto agreed to end the 20-minute “session” only after he determined from the appellant that he could get “more than a rub” and that it was “all taken care of,” and that the parties agreed to sexual intercourse. There was certainly evidence to this effect, and the trial court was the trier of the facts.

In her brief, appellant cites only Young Sun Lee v. State, 681 S.W.2d 656 (Tex.App.1984, pet. ref'd), and Tisdale v. State, 640 S.W.2d 409 (Tex.App.1982, pet. ref'd).² Appellant’s counsel in oral argument told this Court that the interpretation to be given Young Sun Lee would determine the outcome of this case.

In Young Sun Lee, the record showed that the defendant was present during the conversation that took place prior to the exchange of money and during the payment. Later, she told the vice squad officer that the “blow job” he wanted was “covered in the other money you gave.” There the evidence was held sufficient to show that the defendant offered or agreed to the sexual conduct for a fee. In the instant case, appellant negotiated the arrangements herself and personally handled the money. Appellant’s later response that no further money was necessary because it is “all taken care of” is similar to that of Lee’s response to the vice squad officer.

Viewing the evidence in the light most favorable to the judgment of conviction, we conclude that a rational trier of fact could have found all the essential elements of the offense of prostitution as alleged beyond a reasonable doubt.³

Appellant does not cite or rely upon Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App.1976), or Roper v. State, 652 S.W.2d 398 (Tex.Cr.App.1983), although they have been cited in other cases on occasion. Trippell was reversed on the basis that the accused had been denied the right of effective confrontation and cross-examination of the witness Smith. The conviction for aggravated promotion of prostitution under Tex.Pen.Code Ann. § 43.03 was reversed. The court did express serious doubts about the sufficiency of the evidence, although this was not the basis of the reversal. An officer took the witness Smith to Dee’s Health Spa. When Smith indicated he wanted a massage, the defendant Trippell told him it would cost $20.00 and Smith chose Welsh. After taking Smith to a room, Welsh collected $20.00 from him and left. When she returned, she began the massage while fully clothed and asked Smith what he wanted. He replied a “local” and Welsh masturbated him to a climax. The court expressed doubt this constituted prostitution under § 43.02 in its general overall assessment of the evidence to show an offense under § 43.03.

In Roper, a 5-4 decision, two officers paid a Mr. Brownwell $70.00 for “contact session” massages. Later, the massages by Roper and Pierre, the defendants, turned into sexual conduct. There, the court wrote: “There is no evidence that either appellant negotiated a price for sexual favors [McCarty v. State, 616 S.W.2d 194 (Tex.Cr.App.1981); Morris v. State, 565 S.W.2d 534 (Tex.Cr.App.1978)], or received money for her sexual favors [West v. State, 626 S.W.2d 159 (Tex.App.—Beaumont 1981) ]. We find the evidence insufficient to show that appellant engaged in sexual conduct for a fee.”

Interestingly enough, there is no requirement under the statute for the defendant to negotiate a price, see Lee, 681 S.W.2d 656, nor is there a need for money to exchange hands. In fact, in West, the officer paid the defendant for the massage and then again for her to undress, but the opinion does not show he paid her the later quoted prices for sexual conduct as Roper would indicate. Neither Trippell (pre-Jackson v. Virginia) nor Roper (post-Jackson v. Virginia) applied any standard of review to determine the sufficiency of the evidence. Assuming their continued viability, they are distinguishable on their facts from the instant case. Appellant’s second point of error is overruled.

The judgment is affirmed.

Affirmed.

1 . In footnote 8 the authors of said authority at 491 wrote “if a dispute Mises as to whether the witness possesses personal knowledge, the judge should admit the testimony so long as the other requisites of Rule 701 are met and there is sufficient evidence to support a finding of personal knowledge.”

2 . Tisdale held that the term "fee" within subsection (a)(1) of § 43.02 means payment in return for professional services rendered. This does not mean, of course, that there must be an actual exchange of money. See Ozack v. State, 646 S.W.2d 941 (Tex.Cr.App.1983); Robinson v. State, 643 S.W.2d 141, 142 (Tex.Cr.App.1982); McCarty v. State, 616 S.W.2d 194 (Tex.Cr.App.1981); Anguiano v. State, 774 S.W.2d 344 (Tex.App.1989, no pet.).

3 . A disclaimer must be filed. This opinion speaks for itself. The “theory or theories of the majority” referred to in the dissenting opinion are the dissent’s own interpretations, often in the form of straw men.