Etchieson v. State

574 S.W.2d 753, 1978 Tex. Crim. App. LEXIS 1337

• Court: Court of Criminal Appeals of Texas
• Decided: November 1, 1978
• Docket: 53167
• Status: Published

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Virgil John Etchieson appeals from his conviction for the offense of aggravated promotion of prostitution, as denounced by V.T.C.A., Penal Code, Section 43.04. The jury assessed punishment at ten years’ confinement and a $5,000.00 fine. The judgment was affirmed in a prior per curiam opinion 549 S.W.2d 409.

The record shows that appellant was engaged in running a “call-girl” type operation from his lakehouse on Lake Dallas. The instant offense is alleged to have occurred on December 18, 1974. He was arrested on December 20, 1974 at the time of the execution of a search warrant by officers at his lake home on that date.

One of the rooms in his home was used as an office. It contained, among other things, telephones, recording equipment, and automatic answering devices. Also found in the room was a “trick list” described by officers as a list of potential or actual customers for prostitutes. The list was also coded to reflect such information as wife answers the phone, nosey secretary, “gear”, check good and don’t take check. It also contained the names of almost fifty available prostitutes. A customer could obtain the services of one of the prostitutes through the use of an escort service. A customer would call the listed number of the operation and the automatic answering service would tell the caller to leave his name and telephone number and he would be called back. Prior to being called back, the customer’s name would be checked against the “trick list” and if all was in order the call would be returned and a date made. A prostitute would then be sent to fulfill the commitment. Each return call reflected was shown to have been made by Pamela Lou Wood, also known as “Cyn.”

The events leading to appellant’s arrest and exposure of his operation were brought about by the cooperation of a prostitute named Frances Witherspoon and a police informer named Jimmy Hopgood with officers of the Dallas Police Department’s vice squad.

The initial contact with appellant’s operation was established on December 8, 1974, by Sergeant D. F. Fowler through Wither-spoon, who was also known as “Sabrina.” Witherspoon placed a call to Wood on appellant’s unlisted telephone number, 231-9061, and told Wood that she had a trick that she was unable to service because of a recent abortion and requested that she take care of him. Wood assured Witherspoon that he would be taken care of because she had vouched for him. The name of Sam Williams was given to Wood, an alias used by Hopgood.

On December 10, 1974, a date was arranged for Hopgood using the name Williams through Wood at the Ramada Inn Convention Center in Dallas. Deborah Walker, known as Sandy, kept the date and accommodated Hopgood.

Shortly thereafter, Fowler had a series of conversations with Wood using Hopgood’s alias. It was during these conversations that Fowler arranged a party involving the seven prostitutes who were arrested on December 18,1974, at a hotel in Dallas. Fowler had told Wood that there was to be a MasterCharge seminar held at the hotel and it was his desire to give a Christmas party for the seven men attending. Wood agreed that seven girls would be furnished and that the girls would provide a lesbian-type show first and then each of the men would have sexual intercourse with one of the prostitutes.

Through the use of fellow police officers and a few cooperating civilians, Fowler was able to assemble six men at the designated hotel room. The women began arriving individually at nine o’clock p. m. Upon arrival they all undressed and began performing their show. Fowler, in order to make his case against the women involved, stopped them and had the women pair off with the men before continuing the show. Each woman was then paid the agreed price of $200 for her services. Fowler, who had a radio taped to his body, then transmitted a pre-arranged signal to officers waiting in a room across the hall. The officers entered and arrested all seven of the prostitutes. The names of all seven prostitutes were found in appellant’s files at his office in his lake home.

On the basis of this information as well as other information Sergeant Roger Duncan, also of the vice squad, filed an affidavit which was used to obtain a search warrant from the Honorable Robert L. Sparks of Denton County to be executed on appellant’s lake home. Appellant and Wood were both arrested at the time the warrant was executed.

Initially, appellant contends that the trial court erred in failing to require the State to disclose the identity of the informant. At the hearing on appellant’s motion to disclose the informant’s identity, Sergeant Fowler testified that prior to the arrest of the seven prostitutes at the hotel on December 18,1974, he had discussed arrangements for the party with Pamela Wood by calling her at 231-9061 on three occasions and again a fourth time on the day of the party. He related that on December 18, 1974, he met with Sergeant Duncan near a pay telephone on Harry Hines Boulevard. Someone was with Duncan, but that person did not have anything to do with or play any part in making the arrangements for the seven prostitutes to come to the hotel to the alleged Christmas party on that evening. Fowler further testified that he had no idea that anyone would be with Duncan when they had arranged to meet that afternoon.

However, it did not matter whether or not Duncan had anyone with him. After he had placed the fourth call to Wood and given her the room numbers at the hotel where the girls were to go, he told Duncan the substance of his telephone conversation in a quiet manner so that it could not be heard by the individual who was with him. Fowler also testified that the person who was with Duncan was not present at the time the seven prostitutes were arrested at the hotel. To his knowledge that individual was nowhere near the hotel. Fowler emphasized that all of the events leading up to having the girls sent to the hotel on the night of December 18, 1974, were done without any help whatsoever or any effort on the part of the person who was with Duncan the afternoon of December 18. He also admitted that he knew who the person was, that he feared for the person’s life if required to disclose his identity. “The man with Roger Duncan had nothing to do whatsoever with the entire set up of this party in any way.”

Likewise, Sergeant Duncan testified that he himself had not been involved in any way with helping Sergeant Fowler arrange the party and that the confidential informant who had given him his information had been working with him in attempting to clear up the prostitution activities of appellant. Their efforts were being made simultaneous with efforts by Fowler. Duncan stated that he had not told his informant anything about Fowler’s attempts to set up a party with the prostitutes through appellant or Pam Wood. He acknowledged that his informant had been with him on the afternoon of December 18, 1974, but stated that it had not been pre-arranged that he and Fowler and the informant meet jointly. He stated that during the course of Fowler’s conversation with Wood on the afternoon of December 18 he was close enough to Fowler to overhear Fowler’s portion of the conversation but his informant was a few feet away from him on the other side and that when Fowler had completed his conversation he informed only him and not the informant of the full gist of the conversation. Once Fowler’s conversation had been completed, Fowler departed and Duncan and his informant left to go their separate way. Duncan also testified that he was present that night at the hotel and had actually participated in the arrest of the seven prostitutes there but that his informant was not present. When questioned about the statement in his affidavit, “On December 18, 1974, the informant and an undercover agent of the Dallas Police Department called 231-9061 and requested seven (7) females for prostitution purposes to be sent to their hotel,” Duncan related that what he meant was that the informant was present at the time Fowler made the call but that Fowler had made the call personally and did not know the purpose of the call nor to whom Fowler was talking. Further, the reference to “their hotel” in the affidavit was the “ . . . hotel that Sgt. Fowler had prearranged and the other undercover officers working with Sgt. Fowler.”

In his brief, appellant quotes from Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, wherein it was written:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant’s testimony, and other relevant factors.”

However, the Court also wrote:

“ . . . The purpose of the privilege (informant’s privilege) is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”

The identity of an informant need not be disclosed unless (1) the informant participated in the offense; (2) was present at the time of the offense or arrest; (3) was otherwise shown to be a material witness to the transaction or as to whether appellant knowingly committed the act charged. Carmouche v. State, 540 S.W.2d 701 (Tex. Cr.App.1976), and cases cited therein. In the instant case the informant was not present at the time appellant was arrested nor was the informant a participant in the offense. Appellant contends, however, that the informant could be a material witness as to whether or not Duncan relied on credible information in making his affidavit. He argues that the statement in the affidavit wherein Duncan talks about the telephone call made by Fowler on December 18, 1974, is sufficient to show the informant’s participation in the offense. Appellant relies upon James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973). In James, the informant brought the defendant and the undercover agent together and was present when the sale of the marihuana was consummated. The informant in the instant case was neither present at the time the prostitutes were arrested nor did he initiate or participate in establishing initial contact or making arrangements with appellant for the prostitutes to be present at the hotel on December 18, 1974. The James case is not applicable. See also Carmouche v. State, supra.

Appellant next contends that the search warrant was invalid. Hearings on the motion to suppress evidence were held on April 4, April 18 and April 25,1975. We conclude that trial court properly overruled the motion for reasons which follow.

He argues that the affidavit was insufficient to establish probable cause. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the affidavit must contain (1) the underlying circumstances which led to the informant's conclusion of guilt, and (2) the underlying circumstances which led the affiant to believe that the informant was credible and reliable. The affidavit in the instant case contains more than enough information to satisfy both prongs of the Aguilar test. This affidavit, dated December 20, 1974, reads as follows:

“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:

“I have been informed of the foregoing set out facts by a person whom I know to be reliable, credible and trustworthy, who states the following facts: I, the affiant, received information from a confidential informant on numerous occasions, most recently on December 16, 1974, that Virgil John Etchieson is operating a prostitution enterprise from the above mentioned location. The informant stated that he visited the location on December 16,1974, and observed Virgil John Etchieson discussing the price for a date of prostitution with an unknown date. The informant also stated that books containing names and telephone numbers of male persons were referred to when male persons called Virgil John Etchieson requesting dates of prostitution. Virgil John Etchieson is a known pimp and character and has been convicted for procuring and prostitution offenses in the past. I, the affiant, have received information from this informant in the past on at least five different occasions and on each occasion the information proved to be reliable, true, and correct. On December 17, 1974 I, the affiant, observed the informant call 231-9061, a phone number registered to Virgil John Etchieson at the above mentioned address, and request a date of prostitution. A female answered the call and described herself as ‘a red-headed girl called Sin’, and she agreed to send the informant a woman to fill a straight date of prostitution for the sum of $50.00. The informant stated that the prostitute did in fact meet him and filled a date of prostitution with him for the sum of $50.00. On December 18, 1974, the informant and an undercover officer of the Dallas Police Department called 231-9061 and requested seven (7) females for prostitution purposes be sent to their hotel. The female known only as ‘Sin’ again answered the call and stated that she would send seven (7) prostitutes to their location to perform straight dates, french dates, and show dates of prostitution for the sum of $200.00 for each prostitute. The prostitutes did in fact come to the designated location and did agree to the above described dates of prostitution, were paid by the undercover officer and then arrested for Violation Section 43.02 (Prostitution) of the Texas Penal Code. The phone number called on each occasion is registered to Virgil John Etchieson the known pimp. The information on who the telephone is registered to was obtained after Dallas Police Department Officers obtained a court order to get the information. The informant’s information has always been reliable, true, and correct.”

Appellant asserts the search warrant was invalid because it was based on intentional misrepresentations by the affiant, Officer Duncan. The alleged misrepresentations center on Duncan’s testimony at the hearings on the motions to suppress and to disclose the identity of the informant.

The record shows that Judge Sparks questioned Duncan about the affidavit prior to issuing the search warrant. Much of Duncan’s testimony was the same testimony which has been set out in the discussion of appellant’s first ground of error.

The judge had before him evidence from which he could conclude that the informant was not present at the time of the arrests on December 18 and 20, and that he was not a material witness in any respect. While there appear to be some minor discrepancies between Duncan’s testimony and the facts set forth in the affidavit, the record before us supplies no basis for a determination that the search warrant was based upon intentional misrepresentations by the affiant. The judge was the sole judge of the credibility of the witnesses and the facts at the pretrial hearings. See Draper v. State, 539 S.W.2d 61 (Tex.Cr.App.1976). He observed Duncan’s demeanor and the manner in which he testified and determined that the affidavit was valid. No error is shown.

Nor do we find merit in appellant’s attack on the sufficiency of the description of the premises in the warrant due to the fact that the residence was on a rural route and that there was no box with such a number on it located in front of the place and that the house searched was not red and green brick. The description contained in both the affidavit and the warrant is: “A residence, split-level, red and green brick, located at Route 3, Box 435, Lewisville, Denton County, Texas.” (Emphasis supplied). It further states that the premises was occupied, possessed, controlled and under the charge of Virgil John Etchieson w/m/48. The record reflects that the premises searched was a residence, split-level, red brick with green trim, with the address of Route 3, Box 435, Lewisville, Den-ton County, Texas, and that the premises were occupied by Virgil John Etchieson who was a white male.

Such minor discrepancies, if any, in a search warrant otherwise sufficiently describing the general location of the premises and specifically describing the premises themselves will not vitiate a search warrant for insufficient description. All that is required is that there be sufficient definiteness to enable the officer to locate the property and distinguish it from other places in the community. Smith v. State, 478 S.W.2d 518 (Tex.Cr.App.1972).

The contention that the seizure of his records from his office in his home violated his Fourth and Fifth Amendment rights is without merit. In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Supreme Court of the United States held that the search of an individual’s office for business records, their seizure, and subsequent introduction into evidence, did not offend the Fifth Amendment nor did such a search warrant as in the instant case offend the accused’s Fourth Amendment rights.

We have reviewed the record in its entirety and find that the remaining attacks made by appellant on the sufficiency of the affidavit and search warrant are without merit.

Next, he contends that venue was improper in Dallas County and that the trial court was without jurisdiction to try the offense. At the conclusion of the evidence, he moved for an instructed verdict but did not mention venue. His motion, in substance, is as follows:

“The evidence is wholly insufficient to establish jurisdiction of the offense or the persons of the defendants.”

There is a distinct difference between jurisdiction and venue. Jurisdiction concerns the authority or power of a court to try a case. Practically all, if not all, district courts have the authority to try felony cases. Venue has to do with the place or county where a case may be tried.

The same contention was raised in Bass v. State, 464 S.W.2d 668 (Tex.Cr.App.1971), where we held that such an objection did not put the trial court on notice that venue had not been proven.

Lastly, he contends that the trial court improperly admitted into evidence the extraneous offense involving the procurement of Brenda Russell for prostitution purposes. V.T.C.A., Penal Code, Section 43.04, under which he was convicted 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.

“(b) An offense under this section is a felony of the third degree.”

Russell’s testimony as to having been recruited for prostitution by appellant and operated from his lakehouse as well as the fact that she knew that it was appellant’s house because he had told her so was admissible as evidence of appellant’s continuing course of conduct in using the lake-house as well as engaging in a prostitution enterprise as prohibited by Section 43.04, supra. It is of no consequence that Russell’s part in appellant’s operation occurred some two or three months following the instant offense for which appellant has been convicted. Here, as in Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1975), proof of the extraneous offense by appellant was admissible to show his intent and knowledge as well as the purpose of the enterprise which he conducted from his lakehouse. While it is true that an accused is entitled to be tried on the accusation made in the State’s pleading and not for some collateral crimes or being a criminal generally, it is equally consistent and recognized by this Court that this is the general rule; however, several exceptions have been established. The most important ones relating to this case are those of scienter and common plan, scheme or design. Shappley v. State, supra. Albrecht v. State, 286 S.W.2d 97 (Tex.Cr.App.1972). We hold that the testimony of Russell was admissible in the instant case as evidence of appellant’s intent and motive to commit the offense of aggravated promotion of prostitution as this was a circumstantial evidence case and extraneous offenses are admissible to show motive, intent and design as part of the State’s direct evidence. See Albrecht v. State, supra.

No reversible error having been shown, the motion for rehearing is overruled.

VOLLERS, J., not participating.