Ozack v. State

646 S.W.2d 941, 1983 Tex. Crim. App. LEXIS 932

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 1983
• Docket: 60015
• Status: Published

Opinions

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for the offense of prostitution under V.T.C.A. Penal Code, Sec. 43.02(a)(1). The court assessed punishment at 30 days’ confinement in the Dallas County Jail.

In her first two grounds of error appellant challenges the constitutionality of the prostitution statute. Sec. 43.02(a)(1), supra, provides:

“(a) A person commits an offense if he knowingly:

“(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee;”

Appellant maintains that the term “offer” is unconstitutionally vague, uncertain, and indefinite. This same challenge was considered and rejected in McCarty v. State, 616 S.W.2d 194 (Tex.Cr.App.1981).¹ The first two grounds of error are overruled.

Appellant next complains of the denial of her motion to quash the information. She argues that the allegation of “offer” denied her the right to sufficient notice of the charges against her. The information alleged in relevant part that appellant did:

“. .. knowingly offer to engage in sexual conduct, namely: sexual intercourse and deviate sexual intercourse, with M.R. Hill, for a fee.”

Virtually all of the quoted language is descriptive of the offer: what conduct was offered, to whom it was offered, and that it was offered for a fee were all alleged. It was not error to deny the motion to quash. McCarty, supra.

Appellant next challenges the sufficiency of the evidence. She argues that the evidence is insufficient to establish that she offered to engage in sexual conduct for a fee, establishing only that she agreed to engage in such conduct.

The record reflects that the complainant, an officer for the Dallas Police Department, and his partner were working undercover in the early morning hours of September 17, 1977. At approximately one o’clock a.m. the officers encountered a woman known only as Annie who subsequently “agreed to a date of prostitution” and to find a companion for the other officer. Annie thereafter introduced Debra Ann White, appellant’s co-defendant, but as they and the officers were “conversing about a date of prostitution” a marked police car pulled into the area, understandably causing an end to the negotiations.

The officers then drove around the area, subsequently finding White together with appellant. Hill asked White where Annie was, because “[w]e had a deal working with her.” White replied “[w]ell, we’ll make you a better deal,” at which time White and appellant got in the back seat of the officers’ automobile.

A conversation among the four then ensued in which “half and half prostitution” was discussed. White then agreed to engage in “half and half prostitution” with McWilliams for $25.00. Hill thereafter inquired as to the exact nature of “half and half prostitution.” After appellant gave Hill an explicit explanation of the activities involved, he asked, “Well, are you agreeable to that at that price?” Appellant answered, “Yes.”

In McCarty, supra, this Court dealt with the same question presented here: whether an allegation of “offer to engage ...” was sufficient to support a conviction upon evidence that the arresting officer may have actually made the initial offer, while the appellant thereafter agrees to engage in sexual conduct. In finding such an allegation sufficient, we stated:

“Appellant argues that the evidence shows that it was the testifying officer, and not appellant, who made the offer. Although the record indicates the initial offer was made by the [officer], it also shows protracted ‘negotiations,’ in which implied offers were made by both appellant and the [officer]. We find the evidence sufficient and overrule the ground of error.” 616 S.W.2d at 197.

We find the reasoning of McCarty, supra, controlling in the instant case. Although the record reflects that the officer made the initial inquiry, it also reflects “ ‘negotiations,’ in which implied offers were made by both appellant and the [officer].” The evidence is sufficient and ground of error four is overruled. See also Robinson v. State, 643 S.W.2d 141 (Tex.Cr.App.1982).

Finally, appellant complains of the trial court’s failure to sustain her objection to the following question of Officer Hill:

“Q. [By the Prosecutor]: Did the Defendant, Debbie Ozack, offer to engage in sexual intercourse and deviate sexual intercourse with you for a fee?

“[Defense Counsel]: Objection, Your Honor. It calls for a legal conclusion. “THE COURT: Overruled.

“[Defense Counsel]: Note our exceptions.

“Q. You may answer the question.

“A. She did.”

Appellant maintains that this question was improper in that it called for an answer which constituted a legal conclusion. While this question could be construed as calling for a legal conclusion, the trial being before the court, sitting without a jury, we can assume that any improper testimony was disregarded by the judge; therefore, the error, if any, was rendered harmless. Cf. McClendon v. State, 643 S.W.2d 936 (Tex.Cr.App.1982). The ground of error is accordingly overruled.

The judgment is affirmed.

1 . We note that the defense counsel in this appeal also represented the appellant in McCarty, supra. Further, the first four grounds of error in McCarty, supra, are substantially identical to the first four grounds in the case at bar.