Bolick v. State

309 S.W.2d 74, 165 Tex. Crim. 493, 1958 Tex. Crim. App. LEXIS 3972

• Court: Court of Criminal Appeals of Texas
• Decided: January 22, 1958
• Docket: 29419
• Status: Published

Opinions

WOODLEY, Judge.

The offense is procuring; the punishment, six months in jail and a fine of $200.

Dallas Police Officers M. H. Brumley and R. H. Winters went to a lounge called the Zebra Room “to see if there was a violation of the laws, such as prostitution, going on at this place.” After keeping the place under surveillance for two days they sent Police Officer Brian to the lounge on undercover assignment, while they continued their watch outside.

Officer Brian, posing as a man on vacation, “hung around for a while to see what was happening” and “just generally noticed what was going on in the place.” He observed that there was a bar in the place where beer was sold; that appellant was the bar tender; that among several girls who were present was one Rosa who, he noted, left her purse behind the bar. He noticed also that Rosa drank beer which, so far as he could see, she did not pay for.

On the third day he visited the Zebra Room, Officer Brian made the acquaintance of appellant and expressed an interest in Rosa, and appellant told him that “she was available.”

The following day, when Officer Brian came to the bar, Rosa was not there. Brian asked appellant where she was, and appellant “said she was gone with another man” * * * “he told me that he could line the girl up, but it would cost something,” but there was no mention of a specific price.

Officer Brian left, saying that he would have to go get some money, but would be back, and appellant said that would be fine.

After conferring with his fellow officers, Brian returned to the room, at which time appellant was there and Rosa was sitting on the end of the bar.

Brian and appellant then repaired to a sofa located on the east side of the juke box in the Zebra Room, and talked again about Rosa.

Appellant said “he would obtain her for me,” and went toward the bar. He then returned to the couch where he had left Brian and was there joined by Rosa.

Appellant pointed to Brian and said “This is him, the fellow I told you about.”

Brian and Rosa then entered into conversation in which Brian asked how much it would cost “for a date of intercourse,” and she named her price. He asked “where we would go, and she said that she had been going to the Mexico Hotel.” “We decided that we would go” and they walked out the front door of the Zebra Room, but instead of going to the hotel, Rosa was taken to the awaiting officers and appellant was arrested and charged with procuring.

The facts stated are from the testimony of Officers Brian and Brumley. Appellant did not testify and no evidence was offered in his behalf.

The defense of entrapment was submitted to the jury and was rejected.

The statute under which appellant was prosecuted is Art. 525 P.C. which provides in part:

“Whoever shall invite, solicit, procure, allure * * * any female to visit and be at any particular * * * place for the purpose of meeting and having unlawful sexual intercourse with any male person * * * shall be fined not less than fifty nor more than two hundred dollars and be confined in jail not less than one nor more than six months.”

The indictment followed the statute. It alleged the particular place which Rosa was procured to visit and be as “To-wit: a certain couch located east of the juke box in the Zebra Room at 2900 McKinney Avenue, City of Dallas, Dallas County, Texas.”

We overrule the contention that this description was not sufficiently certain to enable appellant to prepare his defense.

The unusual fact situation is that the girl was in the Zebra Room, as were appellant and Officer Brian, when she was procured to go to another location in the same room for the purpose of meeting Brian and arranging for an act of intercourse with him at a hotel.

The legal question posed is whether the couch east of the juke box in the same room was a “particular place” under the statute above quoted in part. We hold that it was.

Under the terms of Art. 525 P.C., the female may be procured to visit and be “at any particular house, room or place.”

In Burge v. State, 96 Texas Cr. Rep. 32, 255 S.W. 754, the particular place alleged was an automobile. This was held sufficient.

In Sanders v. State, 60 Texas Cr. Rep. 34, 129 S.W. 605, the particular place was alleged as “at the town of Dublin, in Erath, County, Texas” and the allegation was held sufficient.

The Sanders case is also authority for the holding that the offense was complete when Rosa was allured or invited and started to the hotel, the place of assignation. See, also, Denman v. State, 77 Texas Cr. Rep. 395, 179 S.W. 120.

That Officer Brian expressed an interest in the particular girl Rosa, and appellant procured her at his request, is not fatal to the conviction. Mayes v. State, 162 Texas Cr. Rep. 105, 282 S.W. 2d 709.

Officer Brian was asked on direct examination why he remained in the Zebra Room the first three days “without making any attempt at this case.”

Appellant’s objection being overruled, Officer Brian answered: “It was apparent after the first day that there was prostitution going on in the establishment, prostitutes were working out of the establishment.”

Appellant moved for mistrial, and excepted when his motion was overruled.

The answer of the witness does not appear to have been responsive to the question. No motion or request to have the answer stricken or the jury instructed to disregard it was made. The answer was not of such prejudicial nature that an instruction from the court to the jury to disregard it could not have cured the claimed error. The trial court did not err in refusing to declare a mistrial because of such answer. Smith v. State, 138 Texas Cr. Rep. 219, 135 S.W. 2d 494; Adams v. State, 158 Texas Cr. Rep. 306, 255 S.W. 2d 513; Johnson v. State, 90 Texas Cr. , 234 S.W. 891; Jamar v. State, 142 Texas Cr. Rep. 91, 150 S.W. 2d 1031; Huff v. State, 145 Texas Cr. Rep. 82, 165 S.W. 2d 717.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.