Cooper v. State

Full title: IVORY BOLDEN COOPER III, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Oct 28, 2004

No. 01-03-00788-CR (Tex. App. Oct. 28, 2004)

Opinion

No. 01-03-00788-CR

Opinion issued October 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from County Criminal Court at Law No. 11, Harris County, Texas, Trial Court Cause No. 1161915.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

MEMORANDUM OPINION

TERRY JENNINGS, Justice.

A jury found appellant, Ivory Bolden Cooper III, guilty of the offense of prostitution. The trial court assessed appellant's punishment at confinement for 180 days, suspended appellant's sentence, placed him on community supervision for six months, and fined him $300. In two points of error, appellant contends that the information was "fundamentally defective"¹ and that the evidence was legally and factually insufficient to support his conviction. We affirm.

1 Although appellant did not assert this issue as a separate point of error, in the body of his argument, appellant contends that the information was "improperly pled."

Facts

Houston Police Officer G. Das testified that, on March 6, 2003, as part of a "reverse prostitution sting," she posed as a prostitute near a Houston Police Department substation at the intersection of Crosstimbers and Castor streets. Das wore jeans, a flannel shirt, and a jacket, which she testified was typical attire for prostitutes in that area. At approximately 11:45 p.m., appellant drove past Das in his black Lexus, made a u-turn, and returned to Das's location. Das did not signal for appellant to stop. Appellant called out to her and initiated the following conversation, which was tape-recorded by Das and was admitted into evidence by the trial court:

Appellant:How are you doing?

Officer Das:Hey, are you by yourself?

Appellant: Yeah.

Officer Das: Okay. I've got a room, if you want it.

Appellant: Come on.

Officer Das: Do you want to do it here or in the room?

Appellant: In the room.

Officer Das: You want to fuck?

Appellant: Yeah.

Officer Das: Okay. I got to have $25, okay? Do you have it?

Appellant: Yeah.

Officer Das:Okay. Don't fuck me on this, all right? You want to meet me over there? It's at Timber.

Appellant:I'm not going to fuck you like that. Come on. I will go with you right now.

Officer Das: Okay. Let me get my clothes.

After the conversation, Das walked away from appellant's car, and Houston Police Sergeant W. Powell and Houston Police Officer D. Mendietta arrested appellant. Mendietta testified that, as part of the undercover operation, he had monitored the conversation on a cellular telephone, listening for the elements of the offense of prostitution. He saw appellant's black Lexus approach Das and noted that Das did not signal for appellant to stop, but, rather, had her hands in her pockets. Once Mendietta heard "a specific mention in this case of a fuck and that the defendant agreed to pay $25 for that," Mendietta signaled for Sergeant Powell to arrest appellant. Powell testified that he was assigned to the undercover operation to provide protection for Das and to arrest suspects for committing the offense of prostitution. Powell also saw appellant's black Lexus approach Das and noted that Das did not signal appellant to stop. Soon after, appellant rolled down his window, Das walked toward appellant, and Powell received a signal from Mendietta to arrest appellant. Appellant, an off-duty Harris County Sheriff's deputy, testified that on March 6, 2003, he had been invited to attend a party at a club on Crosstimbers Street. On his way to the club, appellant saw Das standing in the middle of the street. He assumed that she was looking for a ride or waiting for the bus. However, appellant did not stop at that time and drove to the club. Appellant then decided not to enter the club because not many people appeared to be inside. As appellant drove away from the club, Das signaled for him to stop by putting both her hands out. He thought that Das was a mentally-ill person, a drug addict, or someone who just needed help. Das told him that she needed some money and then asked him for sex. Appellant was "listening to her, evaluating the situation, as [he] was trained in the Harris County Sheriff's Department." After the conversation ended, he began to drive away, but Powell stopped him. Powell and Mendietta then arrested him for the offense of prostitution. Appellant further testified that he did not ask to have sex with Das, agree to pay her $25, meet her in a hotel room, or let her into his car. He was not aware that Das was a prostitute until she solicited him for sex, and he did not believe that the tape recording of the conversation was accurate. However, during cross-examination, appellant testified that he did, in fact, agree to engage in sexual intercourse with Das and that "the two of [them] agreed to a price of $25 for a fuck." But appellant stated that he did not intend to actually engage in sexual intercourse with her and that he did not agree that $25 constituted a fee. On redirect examination, appellant testified that he did not agree to pay $25, and, on recross-examination, he stated that he "made a mistake" and "did not agree to have sex with her." Waiver As part of his first point of error, appellant contends that the information was "fundamentally defective." The information alleges that "[t]he Defendant . . . did . . . unlawfully knowingly agree to engage in sexual conduct, namely, sexual intercourse, to wit: Straight sex, with G. Das, for a fee by agreeing to engage in straight sex with G. Das." Appellant argues that the information was "improperly pled" and "did not state a crime" because it "does not allege that Appellant agreed to pay Das money as a fee. Instead, it awkwardly alleges that Appellant agreed to pay Das a fee by agreeing to have straight sex with Das." Appellant asserts that the "prepositional phrase `by agreeing to engage in straight sex with D. Gas' [sic] modifies the noun fee," and that, as a result, "the information was void and the trial court never obtained jurisdiction." However, if a defendant does not object to a defect, error, or irregularity of form or substance in an information before the date on which the trial commences, he waives and forfeits the right to object to the defect, error, or irregularity, and he may not raise the objection on appeal or in any other post-conviction proceeding. Tex. Code Crim. Proc. art. 1.14(b) (Vernon Supp. 2004-2005). Here, appellant waived any complaint of a defect in the information by failing to file a motion to quash or to otherwise object to the information before the trial on the merits began. Id.; see Clements v. State, 19 S.W.3d 442, 447-48 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Therefore, we hold that appellant did not preserve any error for review. Tex.R.App.P. 33.1(a). We overrule that portion of appellant's first point of error in which he contends that the information was "fundamentally defective."

Sufficiency of the Evidence

In the remainder of his first point of error, appellant argues that the evidence was legally insufficient to support his conviction because the State did not prove that appellant agreed to engage in sexual conduct with Das in exchange for a fee of $25. In his second point of error, appellant argues that the evidence was factually insufficient to support his conviction for the same reason. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, and ask whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuniga v. State, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). In both a legal and a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). A person commits the offense of prostitution if he knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee. Tex. Pen. Code Ann. § 43.02(a)(1) (Vernon 2003). Appellant asserts that, even assuming that he had accepted Das's offer, he never agreed to engage in sexual conduct for a fee of $25. Rather, appellant argues that he simply acknowledged that he had $25 when Das stated, "I got to have $25." Furthermore, appellant asserts that "it is reasonable to believe that, at the time of the conversation, [he] did not understand that Das wanted twenty-five dollars as compensation" for engaging in sexual conduct. Instead, appellant asserts that he could have reasonably believed that the money was needed to pay for a hotel room. However, Das made an audio tape recording of the conversation between appellant and herself, which was admitted into evidence, and Das also summarized the conversation at trial. When Das informed appellant that she had a hotel room if he wanted one, appellant said, "Come on." After Das asked whether appellant wanted "to do it here or in the room," appellant answered, "In the room." Furthermore, appellant replied, "Yeah," when asked if he wanted to go to a hotel room with Das to "fuck." When Das said she needed to have $25, appellant indicated that he had the money. Finally, when Das asked whether appellant wanted to meet her over at the hotel, appellant replied, "Come on. I will go with you right now." Appellant relies on Iles v. State, 637 S .W.2d 940 (Tex.Crim.App. 1982), in support of his contention that the evidence presented here was insufficient. However, in Iles, the Court of Criminal Appeals held that the evidence was insufficient because the appellant did not offer or negotiate a sex act for a fee, but indicated that he would perform the sexual act for no money. Id. at 941. Here, after agreeing to engage in sexual conduct with Das, appellant responded that he had the money when Das told him that she needed $25 in order to engage in such conduct. Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant agreed to engage in sexual conduct for a fee. Tex. Pen. Code Ann. § 43.02(a)(1). Accordingly, we hold that the evidence was legally sufficient to support appellant's conviction, and we overrule that portion of appellant's first point of error in which he contends that the evidence was legally insufficient to support his conviction. In support of his argument that the evidence was factually insufficient to support his conviction, appellant relies on his own testimony. Appellant testified that he did not ask to engage in sexual intercourse with Das, agree to pay her $25 in exchange for sexual intercourse, or agree to meet her in a hotel room. Appellant further testified that he was not even aware that Das was a prostitute until she solicited him for sex. However, as revealed on the tape recording of the conversation between appellant and Das, appellant replied, "Yeah," when asked if he wanted to "fuck." Additionally, when Das informed appellant that she had a hotel room, he told her, "Come on," and said that he wanted to "do it" "[i]n the room." Moreover, when Das asked, "I got to have $25, okay? Do you have it?," appellant replied that he did have that amount. Immediately thereafter, appellant agreed to go with Das to a nearby hotel room. On cross-examination, appellant admitted that he, in fact, agreed to have sex with Das. Although appellant later testified that he had no intention of actually following through with the agreement, a person may knowingly offer to engage in or agree to engage in sexual conduct for a fee and commit an offense under section 43.02(a)(1) without having the intent to actually consummate the sexual conduct. Mattias v. State, 731 S.W.2d 936, 937 (Tex.Crim.App. 1987). As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of appellant's or Das's testimony. See McKinny v. State, 76 S.W.3d 463, 468-69 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Viewing all of this evidence neutrally, we conclude that the evidence was not so obviously weak as to undermine confidence in the jury's determination and was not so greatly outweighed by contrary proof as to indicate that a manifest injustice occurred. Accordingly, we hold that the evidence was factually sufficient to support appellant's conviction. We overrule appellant's second issue.

Conclusion

We affirm the judgment of the trial court.