Qin, Aimei v. State

• Court: Court of Appeals of Texas
• Decided: December 28, 2004
• Docket: 14-03-01148-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed December 28, 2004

Affirmed and Memorandum Opinion filed December 28, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01148-CR

AIMEI QIN, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________

On Appeal from County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Cause No. 1176589

M E M O R A N D U M   O P I N I O N

Appellant Aimei Qin challenges her conviction for prostitution on the stated grounds the evidence was legally and factually insufficient to show she knowingly committed the offense.  We affirm.

I.  Factual and Procedural Background

On June 3, 2003, Houston Police Officer Ronald B. Carter, who had worked in the vice division for eighteen years, and two other police officers conducted an undercover investigation of Kim=s Spa due to ongoing problems with prostitution and previous arrests for prostitution at that location.  Working undercover, Officer Carter approached Kim=s Spa, leaving his cell phone line open with Officer Williams listening on the other end for his cue to enter the establishment.  A receptionist at Kim=s Spa arranged for several women to get in a line for Officer Carter and told him to pick whichever one he wanted.  In response to an inquiry by Officer Carter, the receptionist indicated that all of the women could speak English and that all of them gave massages.  Officer Carter chose appellant.

Appellant and Officer Carter engaged in conversation.  A door in the reception area was then buzzed open, and appellant led the undercover officer to a back room away from the front reception area.  Officer Carter left that room when he heard Officer Williams at the front door and footsteps running down the hallway.  Officer Carter then opened the door for Officer Williams.  Officer Carter identified appellant as the person with whom he had been engaged in conversation.  Appellant was arrested for prostitution.

A jury convicted appellant of prostitution.  The trial court sentenced her to two days= in jail and assessed a fine of $500.

II.  Issues Presented

In two issues, appellant asserts the evidence is legally and factually insufficient to support her conviction for prostitution.

III.  Standard of Review

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  A reviewing court may find the evidence factually insufficient in two ways.  Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  at 484B85.  In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 481B82.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                           IV.  Legal and Factual Sufficiency Analysis

A person commits prostitution if she knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee.  Tex Pen. Code Ann. ' 43.02 (Vernon 2003).  A person acts knowingly, or with knowledge, with respect to the nature of her conduct or to circumstances surrounding her conduct when she is aware of the nature of her conduct or that the circumstances exist.  A person acts knowingly, or with knowledge, with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result.  Tex. Pen. Code Ann. ' 6.03(b) (Vernon 2003).  ASexual conduct@ includes sexual intercourse; and Asexual intercourse@ means any penetration of the female sex organ by the male sex organ.  Tex. Pen. Code Ann. ' 43.01(4), (5) (Vernon 2003).

In her first issue, appellant argues that the evidence is legally insufficient to support her prostitution conviction because there is no evidence that she ever offered sex to Officer Carter, that there were no negotiations for any fee for a sex act and no money was exchanged. Additionally, she contends that Officer Carter was the one who made an offer to her and that there was no testimony she agreed to engage in any sex act with him.

In her second issue, appellant argues that the evidence is factually insufficient because there is no evidence that she acted knowingly.  In particular, appellant argues that she never performed any overt act to indicate she understood what Officer Carter was asking, no contact of any kind took place, no one disrobed, no money was exchanged, and after she was arrested, she did not attempt to escape and went through the booking process without speaking English.

At trial, Officer Carter testified as follows:

(1)       He entered Kim=s Spa at about 10:15 p.m.;

(2)       Appellant was wearing a Athin, see-through-type nightie . . . like women wear when they go to bed;@

(3)       Appellant was completely naked underneath;

(4)       After he chose appellant, she came up to the window and told him prices for sexual intercourse and for oral sex;

(5)       He spoke with appellant in English;

(6)       Appellant did not seem to have any problems understanding the conversation;

(7)       Appellant agreed to engage in sexual intercourse with Carter for a fee of $120;

(8)       Carter agreed to pay appellant in the back room;

(9)       After he told appellant the sex acts he was interested in, the door was buzzed open, and appellant led him to a room away from the front area;

(10)     The room had a little table, a small bed, towels, and baby oil; and

(11)     After appellant took him to that room, she told him to disrobe. 

Officer Carter further testified to the following:

(1)       Appellant did not have a valid massage therapist license;

(2)       Kim=s Spa did not have a valid massage business license;

(3)       On the occasion in question, he also came into contact with two additional customers;

(4)       All of the employees of Kim=s Spa were arrested that night;

(5)       Appellant appeared to understand why she was being arrested;

(6)       Appellant gave him the answers to all of the booking questions, such as her name, address, place of birth, height, weight, social security number, driver=s license number, and date of birth;

(7)       Appellant did not have any problems doing so; and

(8)       An interpreter was not required.

On cross-examination, Officer Carter testified as follows:

(1)       Tape recordings of transactions involving undercover police officers can be made, but that the recording equipment was not working that night;

(2)       He searched appellant, her handbag, and the room and did not find any condoms;

(3)       He had no physical contact with appellant;

(4)       No money was exchanged;

(5)       Appellant did not offer any sexual services to him; rather, he specifically requested sexual services of her; and

(6)       He did not take any photographs of appellant the night of her arrest to show how she was dressed.

Officer Carter also admitted that a customer would be told to disrobe for a massage and that appellant was not charged with violating any statutes regulating what licenses a person must have in order to perform a massage in Texas.

Officer Williams testified to the following:

(1)       He had been assigned to the vice division for ten years;

(2)       He was conducting an investigation with Officers Carter and Surginer on June 3, 2003 regarding ongoing organized crime and prostitution; and

(3)       There were previous problems at Kim=s Spa.

Regarding the night of June 3, 2003, Officer Williams testified that he heard the following:

(1)       Officer Carter ask if all the women at Kim=s Spa spoke English and if they gave massages and that the answer was Ayes;@

(2)       A female engage Officer Carter in conversation, stating that a massage would cost $45;

(3)       Officer Carter ask for sexual intercourse and the female reply that it would cost $120; and

(4)       Officer Carter ask for oral sex and the female voice reply that it would cost $100.

Officer Williams also testified as follows:

(1)       Officer Carter pointed out appellant to him as the female with whom he had had the conversation;

(2)       Appellant was then arrested;

(3)       Appellant appeared to understand why she was being arrested;

(4)       Appellant did not sound like she was having any problems communicating with Officer Carter;

(5)       He never got the impression appellant could not speak or understand English; and

(6)       Appellant did not hesitate or seem confused by Officer Carter=s questions.

In response to the question whether he understood that appellant and Officer Carter had agreed to engage in sexual activity, Officer Williams stated that he took their conversation to mean that each time appellant gave a price, that there was an agreement because she was saying, Ayes, this would cost this much . . .@  Regarding the two other customers at Kim=s Spa, Officer Williams testified that one, who was sixteen years old, had $120 in cash.

On cross-examination, Officer Williams stated that there were three females present at Kim=s Spa, that he could not see into the spa, and that he could not see who quoted Officer Carter the prices.  He also testified as follows regarding the booking process:

(1)       An accused does not need to speak English to get through it;

(2)       If a police officer is unable to communicate with an accused, the officer will try to take steps to ensure the information is adequately recorded but that a person will be booked whether they are able to speak English or not; 

(3)       He believed Officer Carter filled out the booking information on appellant at the crime scene and had no problem doing so;

(4)       Officer Williams was sure Officer Carter obtained appellant=s passport that provided her name, date of birth, and all of the information that he would have needed to identify her along with a photographic identification.

Under the applicable standard of review, we conclude that the evidence is legally sufficient to support appellant=s conviction for prostitution.  A rational trier of fact could have found beyond a reasonable doubt that appellant knowingly agreed to engage in sexual conduct for a fee.  Contrary to appellant=s arguments on appeal, the applicable statute does not require the State to prove that appellant initiated the discussions regarding whether she would knowingly agree to engage in sexual conduct for a fee.  See Tex Pen. Code Ann. ' 43.02.  Likewise, the statute does not require evidence of negotiations over the fee to be charged or evidence of an exchange of money.  See id.  Accordingly, we overrule appellant=s first issue.

After examining all the evidence under the applicable standard of review, we further conclude the evidence is factually sufficient to support appellant=s conviction.  The State was not required to prove any contact between Officer Carter and appellant, any disrobing, any exchange of money, or any attempt to escape.  See id.  In her main argument under her second issue, appellant asserts the evidence is factually insufficient to support the jury=s finding that she acted knowingly because there is factually insufficient evidence to show that she understood the English language.  We disagree and conclude that the testimony of Officers Carter and Williams provides factually sufficient evidence that appellant acted knowingly and that she was able to understand and converse in the English language.  Accordingly, we overrule appellant=s second issue.

Having overruled appellant=s two issues, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 28, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).