Brownwell v. State

644 S.W.2d 862, 1982 Tex. App. LEXIS 5370
CourtCourt of Appeals of Texas
DecidedNovember 24, 1982
DocketNo. 12-81-0107-CR
StatusPublished
Cited by4 cases

This text of 644 S.W.2d 862 (Brownwell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brownwell v. State, 644 S.W.2d 862, 1982 Tex. App. LEXIS 5370 (Tex. Ct. App. 1982).

Opinion

McKAY, Justice.

Appellant was charged by indictment with the offense of aggravated promotion of prostitution, to which indictment appellant entered a plea of not guilty. Trial by jury was waived and the court found appellant guilty and his punishment was assessed at five years confinement. The sentence was probated.

Officers Semora and Chisholm of the Houston Police Department entered the Golden Girl Studio in Houston, and appellant was standing behind a counter. There was a cash register on the counter. Semora testified that two women, Ms. Roper and Ms. Pierre, were sitting on a couch at the end of the counter; that appellant asked if he and Chisholm had been there before, and he answered they had not. Appellant then pointed to a piece of cardboard or paper that had prices on it for sessions — contact sessions and no contact sessions — and “went over the cost for the sessions,” and asked him which one he wanted. The Golden Girl Studio was known as a modeling studio “where a man can go and be modeled, clothed or nude, with a female model.” The price for the contact session was $35.00 for 30 minutes with a female model in the room. Semora asked appellant if contact sessions meant they could touch the girls, and appellant said if they paid for the contact session then they could touch the girls and the girls could touch them, but they could not touch each other if they did not pay for a contact session. Both officers agreed to take the 30 minute contact session. There were pictures of girls at the counter for them to see and choose one, but Semora chose Ms. Pierre and Chisholm chose Ms. Roper, and Semora paid appellant $70 for himself and Chisholm.

Semora said he went with Ms. Pierre upstairs to a room, and she took all her clothes off, and after he asked if he could get as comfortable as he wanted, he took all his clothes off and both of them were completely nude. After telling Pierre he did not want to paint, both of them sat down on the bed. He said, “Well, I paid for contact session, does that mean I can touch you and play with your breasts, or whatever?”, and she said “sure.” Semora then began fondling her vagina for 30 seconds to a minute. Pierre then removed his hand and masturbated herself for 5 to 10 minutes. She then asked Semora if he wanted a rub down; he consented and she then rubbed his back, then his chest for 5 minutes each, and she then rubbed him in the groin area and then placed her finger at the base of his penis and rubbed gently there. He fondled her breasts during this time.

After the 10 or 15 minutes of massage a voice which “sounded similar” to appellant’s came over the intercom in the room asking if the customer wanted an extension. Sem-ora then told Pierre he did not want an extension, put his clothes on, and as they were preparing to leave he asked her about a mirror next to the intercom since it did not appear to be a typical mirror. Pierre “lowered her voice real low, where I could bearly hear, and she whispered in my ear ‘It’s a two-way mirror.’ ” She said a person could look into the room from the hallway, that it was used by appellant, who she said was the manager, to look into the room if a customer stayed too long with a girl, and that he could listen on the intercom if he wanted to and learn what was happening in the room or if the girls were having any trouble. Semora then walked downstairs, met Chisholm and left.

Chisholm testified he had been with the Houston Police for four years, presently in the vice division. He said he went to the Golden Girl Studio to check out illegal prostitution activities with Semora, and that appellant was working there behind the [864]*864cash register area and there were two females there also. The conversation between Semora and appellant concerned the type and cost of sessions. Chisholm said he chose a contact session with one of the girls present who gave her name as Satin. Sem-ora paid $70 for both of them, and he followed Satin upstairs to a room. She then told him to remove his clothes and she removed her clothes, and as they lay on the bed he asked her what did he get, and she replied he could touch her anywhere except between the legs. He then began to massage her breasts, and then when he began to massage her vagina she placed her hand over his hand and began to massage. She then grabbed his penis and began to masturbate him, and at one time she rubbed his penis over the opening of her vagina. At that time a voice was heard stating that the time was up for the session and asking if the customer wished to extend it. He said the voice appeared to be appellant’s, and he told appellant he did not want to extend the session. He then got dressed, met Semora downstairs and left the location.

Appellant first complains that the evidence is insufficient to support a conviction because the acts and declarations of the two women cannot be imputed to appellant. The testimony of the two women was objected to by appellant as hearsay, and he argues that to permit such evidence as an exception to the hearsay rule there must be independent evidence of conspiracy in the record.

By his second ground of error appellant contends that the evidence is insufficient to support the finding that he owned, rented, invested in, financed, controlled, supervised or managed a prostitution enterprise. Grounds one and two will be discussed together.

Section 43.04, Tex.Penal Code,1 provides, “(a) A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.” Section 43.02 provides in part: “(a) A person commits an offense if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct in return for a fee payable to the actor; or (2) solicits another in a public place to engage with him in sexual conduct for hire.” Section 43.01(3) defines “sexual contact” as “any touching of the anus or any part of the genitals of another person or of the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person,” and § 43.01(4) provides “sexual conduct” includes deviate sexual intercourse, sexual contact, and sexual intercourse.

Under the former Penal Code (art. 514) aimed at prohibiting maintenance of houses of prostitution (keeping bawdy or disorderly houses) the conduct and conversations had with inmates, showing invitations to have sexual intercourse, was held (over the objection of the accused that it occurred in his absence and that there was no evidence showing his knowledge or concurrence and therefore not binding him) to be admissible on the ground it was essential to show the character of the house and the fact that it was resorted to for the purposes of sexual intercourse. Hickman v. State, 59 Tex.Cr.R. 88, 126 S.W. 1149, 1150 (1910).

A number of cases followed and cited Hickman where the offense was keeping a disorderly or bawdy house: Finn v. State, 60 Tex.Cr.R. 521, 132 S.W. 805 (1910); Novy v. State, 62 Tex.Cr.R. 492, 138 S.W. 139, 141 (1911— evidence of acts showing conduct and conversation had with inmates is admissible to show character of the place); Dossett v. State, 93 Tex.Cr.R. 41, 245 S.W. 439 (1922); Claiborne v. State, 100 Tex.Cr.R. 322, 273 S.W. 260, 261 (1925); Bryant v. State, 163 Tex.Cr.R. 463, 293 S.W.2d 646, 648 (1956).

In Claiborne it is said:

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Bluebook (online)
644 S.W.2d 862, 1982 Tex. App. LEXIS 5370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brownwell-v-state-texapp-1982.