Opinion
No. 05-07-01212-CR
Opinion issued January 23, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-86231-06.
Before Justices MORRIS, FRANCIS, and MURPHY. Opinion By Justice FRANCIS.
OPINION
Following a bench trial, Gui Xiang Ma was convicted of prostitution and fined $1500. In two issues, appellant contends the evidence is legally and factually insufficient to support her conviction. We affirm. Plano police Detective Grant Harp was assigned to the criminal intelligence unit, which investigated, among other things, prostitution. Harp said after monitoring web sites, ads, and newspapers, he developed information of "possible prostitution" at ABC Health Center in Plano. Acting in an undercover capacity, Harp made an appointment at ABC. Harp arrived at ABC wired for sound, and a surveillance team waited outside. Harp was met at the door by appellant, who identified herself as "Cocoa." Appellant led him to a room, where she hugged him and asked how long a session he wanted. The word "massage" was never used. Harp told her one hour, and appellant told him the cost was $60. Harp paid her with three $20 bills. Appellant left the room, and Harp undressed, sat on a massage table, and covered his "private areas" with a towel. When appellant returned to the room, she asked Harp if he wanted a hard or soft massage, and Harp requested a soft massage. Harp said he laid on his stomach with his buttocks covered with the towel and appellant began a "feather-like touch across the skin." Within a couple of minutes, Harp said appellant began occasionally grazing his testicle area. After about ten minutes, Harp said he turned over on his back, leaving the towel covering his genitals. Harp testified that appellant immediately removed the towel, continued the feather-like touch, and grazed his "testicle/penis area occasionally." Appellant said he asked "how much it would be to continue with that," and appellant put her fingers over her lips "as if to — to be quiet or not ask any questions." Within seconds, appellant grabbed Harp's penis and stroked it three times. Harp said he asked for a washcloth, which was the "bust signal" for the surveillance team to enter and secure the location. Appellant, who apparently did not understand, asked with gestures if he wanted a "blow job." Harp said no and asked again for a washcloth. Harp testified that in his opinion, the initial $60 fee went "towards sexual conduct." On cross-examination, Harp testified appellant never verbally offered to engage in sexual contact for a fee and there was no negotiation of a price for sex. Additionally, when asked if appellant indicated that she expected payment over and above the $60 already paid, Harp said appellant did not answer when he asked her; instead, she put her finger to her lips. Detective Curtis Coburn was part of the team awaiting Harp's signal. He testified that after Harp entered the building, an unidentified female came out and looked inside Harp's vehicle through the window. Coburn said there was nothing in the vehicle to show that Harp was a police officer. Once the team received the signal to go into the building, Coburn said he asked appellant what she had done with the money Harp had given her. Appellant led him to a different room and pointed to a tissue box, where he found the money stashed under tissues. A sound recording of Harp's time with appellant was admitted as evidence. The 14½-minute recording showed that the entire "massage" lasted only ten minutes before Harp gave the bust signal. Further, it showed that Harp turned over on his back seven minutes into massage, and within seconds, appellant giggled and asked, "You like it," to which Harp responded, "How much extra is that?" Two and a half minutes later, Harp gave the bust signal. In two issues, appellant contends the evidence is legally and factually insufficient to support her conviction. Specifically, she argues that while there was evidence of "some consensual sexual contact" between her and Harp, there was no factual link between the payment of the fee and subsequent sexual contact. In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper, 214 S.W.3d at 13. Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. On appeal, the same standard of review is used for both circumstantial and direct evidence cases, as well as for bench trials and jury trials. Id.; Grant v. State, 989 S.W.2d 428, 432 (Tex.App.-Houston [14th Dist.] 1999, no pet.). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs when the finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. The difference between the two standards is that the former requires the reviewing court to defer to the factfinder's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the factfinder on these questions but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to factfinder's determination). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Id. A person commits prostitution if she knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee. Tex. Penal Code Ann. § 43.02(a)(1) (Vernon 2003). Sexual conduct, as defined by statute, includes sexual contact, which means "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Id. at § 43.01. Appellant argues that two legal acts — paying for/receiving a lawful massage and engaging in consensual sexual contact — have been "juxtaposed in an attempt to create an illegal act." She argues it is not prostitution when one person pays another for a lawful service, and during the performance of that service, engages in consensual sexual contact with the person. Relying on Trippell v. State, 535 S.W.2d 178 (Tex.Crim.App. 1976) and Roper v. State, 652 S.W.2d 398 (Tex.Crim.App. 1983), she argues there was no link between the sexual contact and any fee. In Trippell, a police officer took a citizen-witness, Mr. Smith, to a health spa. When Smith stated he wanted a massage, the defendant Trippell told him it would cost $20. Smith chose Welsh, who took him to a room, collected the $20, and left. When Welsh returned, she began the massage while fully clothed and asked Smith what he wanted. Smith said he wanted a "local," and Welsh masturbated him to climax. The court reversed the conviction on the basis that Trippell had been denied the right of effective confrontation. In one paragraph, however, the court expressed doubt as to the sufficiency of the evidence: "Having already paid for the massage it is difficult to characterize Welsh's actions as prostitution under V.T.C.A. Penal Code, Sec. 43.02. It is even more difficult to then impute Welsh's actions if they be an offense to the appellant herein, or to rely on Smith's testimony to show that the Spa was a `prostitution enterprise' as required by V.T.C.A. Penal Code, Sec. 43.04." Trippell, 535 S.W.2d at 181. Roper was a 5-4 decision. There, two officers paid a Mr. Brownwell $70 for "contact session" massages. Later, the massages by defendants Roper and Pierre turned into sexual conduct. In reversing the convictions, the court wrote:
Although the evidence shows that the officers paid Brownwell $70.00 for two contact sessions, we decline to interpret this as payment for sexual conduct. The officers were paying for a massage. No money was exchanged between the officers and the appellants. See, Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App. 1976). There is no evidence that either appellant negotiated a price for sexual favors [ McCarty v. State, 616 S.W.2d 194 (Tex.Crim.App. 1981); Morris v. State, 565 S.W.2d 534 (Tex.Crim.App. 1978) ], or received money for her sexual favors [ West v. State, 626 S.W.2d 159 (Tex.App.-Beaumont 1981)]. We find the evidence insufficient to show that appellant engaged in sexual conduct for a fee.Roper, 652 S.W.2d at 399. We note there is no requirement under the statute for the defendant to negotiate a price, nor is there a need for money to exchange hands. Austin v. State, 794 S.W.2d 408, 413 (Tex.App.-Austin 1990, pet. ref'd). Moreover, neither case applies any standard of review to determine the sufficiency of the evidence, and the language in Trippell is nothing more than dicta. Even assuming their continued viability, we conclude the instant case contains sufficient circumstantial evidence so as to distinguish it. Here, the circumstances show that Harp was met at the door by appellant, who led him to a room, hugged him, and asked how long of a session he wanted. Harp paid appellant and, when she left the room, undressed, sat on a massage table, and covered his "private areas" with a towel. Appellant returned only a minute or two later. Within a few minutes of beginning what was supposed to be an hour-long "soft massage," appellant began grazing Harp's testicle area. Harp then turned over on his back, and appellant immediately removed the towel and began grazing his testicle/penis area. When Harp asked how much to continue "that," appellant put her fingers to her lips and, within seconds, grabbed his penis and stroked it, giggling and saying, "you like it." At that point, Harp gave the bust signal by asking for a washcloth, and interestingly, appellant believed Harp was asking for a "blow job," which suggests her mind frame during the encounter. Only ten minutes had elapsed since the "massage" began. We conclude the circumstantial evidence was sufficient to establish beyond a reasonable doubt that appellant engaged in sexual contact for the $60 fee. Given all the circumstances, including the fact that the sexual touching began almost immediately, the trial court could have rationally inferred that appellant, by signaling silence and then immediately stroking Harp's penis, was communicating to Harp that he had already paid for the service. The evidence was legally sufficient to support the conviction. Moreover, we conclude the evidence was not so weak that the finding of guilt was clearly wrong and manifestly unjust. We overrule both issues. We affirm the trial court's judgment.