No. 05-04-01556-CR
Opinion Issued June 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court, No. 11, Dallas County, Texas, Trial Court Cause No. MB03-50943-N. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MAZZANT, Justice.
A jury convicted Linda Diane Butler of prostitution. The trial court assessed punishment at 120 days' confinement in the county jail, probated for twelve months, and a $200 fine. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On March 10, 2003, several Dallas Police Department vice officers were working undercover in an area in South Dallas known for prostitution. The officers patrolled the area using separate vehicles, posing as potential customers. Detective David Tremain testified that he was driving a 1988 Ford Thunderbird and another detective drove an Explorer. As Tremain drove down Colonial Street, he saw appellant standing on the side of the road. Tremain explained that prostitutes usually make eye contact with the driver of the car, so that the driver knows to pull over to talk with the prostitute. Appellant made eye contact with Tremain as he drove down the street. Initially, Tremain was unsure whether appellant was soliciting him because she was much older than most of the prostitutes in the area and she was not "cracked-out skinny." Tremain drove around the block, and appellant made eye contact with him on his second pass. Tremain pulled his vehicle to the side of the road, and appellant got in. When appellant got into the vehicle, Tremain said, "I'm looking for a date." Tremain testified that "date" is a term prostitutes use for having sexual contact for money. Appellant asked Tremain if he was a police officer, and Tremain said no. Appellant then asked Tremain what he was looking for. Tremain responded, "[A] blow job." Appellant asked, "Can you spend $20?" Tremain said yes, then drove to the parking lot of a nearby theater where other officers were waiting. Tremain parked the vehicle, identified himself as a police officer, and arrested appellant. Tremain testified that appellant had jumped into his car when he pulled up next to her. He said she never asked him to give her a ride and there were three bus stops within a two-block area of where he had picked her up. Appellant denied that she agreed to engage in sexual conduct for money or that she was a prostitute. Appellant testified that at the time of the incident, she was fifty-three years of age and had been having marital problems. She had taken a bus from her home in South Oak Cliff to visit a friend who lived on Holmes Street in South Dallas. Appellant spent the day with the friend and left his house at approximately 6:45 p.m. to walk to the bus stop so she could return home. Appellant testified she was feeling very sick, her feet were swollen, and she was very tired. As she crossed a street, she saw a white Explorer drive by with three men inside. The men yelled vulgar comments to her. The vehicle stopped further up the street next to three women who had been standing there. One of the women got into the vehicle and they drove away. A different car pulled up next to appellant. Appellant testified that she never made eye contact with the driver of the car, but she got into the vehicle because she wanted a ride to the bus stop. Appellant asked the driver, whom she identified as Tremain, to give her a ride to the bus stop. Tremain said he had twenty dollars and wanted her to perform oral sex on him. Appellant testified she was shocked and said nothing. Tremain then offered appellant ten extra dollars to show him a street he wanted to find. Appellant told Tremain to stop the car and let her out. Tremain drove to a nearby parking lot then stopped the vehicle. Tremain told appellant he was a police officer, grabbed appellant's wrist, and fought with her inside the vehicle. Appellant broke lose and ran a short distance. Tremain grabbed appellant in a choke-hold and arrested her. Appellant testified that her wrist was sprained during the struggle. A week later, appellant discovered she had suffered kidney failure earlier that day. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine 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); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly offered to engage in sexual conduct with David Tremain for a fee. See Tex. Pen. Code Ann. § 43.02(a) (Vernon 2003). Discussion
Appellant argues the evidence is factually insufficient because (1) Tremain's testimony was not corroborated by any kind of evidence; (2) Tremain admitted that he did not think appellant was doing anything wrong when he initially saw her; and (3) appellant's testimony established that she was only seeking a ride to the bus stop. The State responds that the evidence is factually sufficient because the jury was entitled to believe Tremain's testimony. We agree with the State. Appellant essentially asks this Court to find that her testimony was more credible than Tremain's. However, the jury was the sole judge of the credibility of the witnesses and the weight to give testimony, and it was the jury's function to resolve the conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standard, we conclude it is factually sufficient to support the conviction. See Zuniga, 144 S.W.3d at 484. We overrule appellant's sole point of error. We affirm the trial court's judgment.