Opinion
NO. 01-11-00105-CR
01-12-2012
AEKYUN SIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1677151
MEMORANDUM OPINION
Aekyun Sin appeals from her conviction for the misdemeanor offense of prostitution, for which she was sentenced to ten days' confinement in county jail. In a single issue, she contends the trial court reversibly erred by refusing her request for a jury instruction on the defense of entrapment. We affirm the trial court's judgment.
See TEX. PENAL CODE ANN. § 43.02 (West 2011).
Background
The State charged Sin by information with the misdemeanor offense of engaging in prostitution by agreeing to engage in sexual intercourse. Sin pled not guilty, and the case was tried to a jury.
Officer D. Miller of the Houston Police Department Vice Division testified that he and Officer J. Patterson began investigating the "Fabulous Spa" after they observed an advertisement for the spa from an online Houston newspaper, "Backpage," in the "body rub" section. Officer Miller testified that the advertisement pictured scantily clad women and that "Backpage" is "well known for a place for prostitutes to advertise." Officer Miller set up an appointment at the spa for himself and Officer Patterson.
When Officers Miller and Patterson arrived at the spa, they rang the doorbell and an Asian woman in a negligee opened the door. The officers requested a massage and were led into a hallway behind a steel door. There, Officer Miller was met by Sin, who was wearing a red negligee that had a "length that just covered her private area." The negligee was see-through, and Officer Miller could see that Sin had on a "g-string" under the negligee and was not wearing a bra.
Sin led Officer Miller to a massage room, where she asked him for $60, which she said would cover a body rub, sauna, and table shower. Officer Miller asked for the table shower last "[b]ecause in my past experience, while you are in the table shower, they go through your clothing, looking for your I.D." He paid Sin $60, and she left the room while he disrobed. Officer Miller admitted that he disrobed of his own volition, covering himself with a towel and laying on his stomach on the massage table. When Sin returned to the room, she rubbed Officer Miller's back for approximately five minutes, then asked him to turn over. He turned over, and she asked him if he would tip her. He responded affirmatively, and she asked him if he wanted "full service." Officer Miller testified that in his training and experience, "full service" meant sexual intercourse. Officer Miller agreed to the full service, at which time Sin informed him that full service cost $200 and "[s]ex with the mouth" cost $140. Officer Miller testified that Sin gestured to demonstrate sex with the mouth, repeating those gestures for the jury, and that in his training and experience, these gestures simulated oral sex. Officer Miller asked Sin specifically if full service meant sex, to which she responded, "yes," and if he could get "a blow job and sex for $200," to which she also responded, "yes." Officer Miller identified himself as a police officer and placed Sin under arrest.
On cross-examination, Officer Miller stated that he did not see any condoms or sex toys in the room. During his testimony, the jury also heard an audio recording of Officer Miller's conversation with Sin. The jury convicted Sin of the misdemeanor offense of engaging in prostitution and assessed a punishment of confinement for ten days in county jail. Sin appealed.
Entrapment Instruction
In her sole issue, Sin contends that the trial court erred by disregarding her request for a jury instruction on entrapment because the evidence raised the defense. The State responds that the defense of entrapment was not available because there was no evidence that Sin, subjectively, was induced to engage in prostitution by Officer Miller or that a person, objectively, would have been induced to engage in prostitution by Officer Miller's conduct.
The State does not challenge Sin's contention that she properly preserved error on her charge request.
Under section 8.06 of the Texas Penal Code, Sin could invoke the defense of entrapment if she "engaged in [prostitution] because [s]he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense." TEX. PENAL CODE ANN. § 8.06(a) (West 2011). But "[c]onduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Id. Sin's entrapment defense has four elements: (1) she engaged in prostitution; (2) she was induced to do so by Officer Miller; (3) Officer Miller used persuasion or other means to induce her to engage in prostitution; and (4) Officer Miller's persuasion or other means were likely to cause persons to commit the offense of prostitution. See Hernandez v. State, 161 S.W.3d 491, 497-98 (Tex. Crim. App. 2005). Sin was entitled to submit this defense to the jury if she produced evidence sufficient to make a prima facie showing of each of these elements.Id.; see also TEX. PENAL CODE ANN. § 2.03(c) (West 2011).
Because entrapment is a defense to prosecution, rather than an affirmative defense, Sin has the burden of production but not the burden of persuasion. See Hernandez, 161 S.W.3d at 498; Becker v. State, 840 S.W.2d 743, 746 (Tex. App.—Houston [1st Dist.] 1992, no pet.).
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While the second element of entrapment is a subjective standard, the fourth element is objective. Hernandez, 161 S.W.3d at 497 & n.11 (citing England v. State, 887 S.W.2d 902, 913-14 (Tex. Crim. App. 1994)). The subjective element requires evidence that "the accused himself was actually induced to commit the charged offense by the persuasiveness of the police conduct." Id. (quoting England, 887 S.W.2d at 913 n.10). Once subjective inducement has been demonstrated, the issue becomes whether the persuasion was such as to cause an ordinarily law-abiding person of average resistance nevertheless to commit the offense. Id. Prohibited police conduct can include pleas based on extreme need, sympathy, pity, or close personal friendship; offers of inordinate sums of money; and other methods of persuasion that are likely to cause the otherwise unwilling person—rather than the ready, willing and anxious person—to commit an offense. Id.
Sin did not make a prima facie showing of either the subjective or objective elements of entrapment—i.e., she did not produce evidence that Officer Miller's conduct actually persuaded her to offer him sexual intercourse in exchange for money or that his conduct would have persuaded an ordinarily law-abiding person of average resistance to do so. Sin admits that she raised the issue of "full service," but points out that it was Officer Miller who asked if that meant sexual intercourse. But there is no evidence that Officer Miller induced her to respond "yes" to this question. And according to the testimony, Sin offered "sex with mouth" for $140 before Officer Miller asked any question. Sin also points out that Officer Miller disrobed and covered himself with a towel without prompting from Sin, but there is no evidence that this is not a common practice in massage parlors generally or that this was not a common practice in Sin's own experience. Nor is there evidence that this action made Sin feel compelled to offer Officer Miller sexual intercourse in exchange for monetary payment. There is also no evidence that Officer Miller pled with Sin to engage in prostitution based on extreme need, sympathy, pity, or close personal friendship or otherwise engaged in methods of persuasion likely to cause an otherwise unwilling person to commit an offense. See Hernandez, 161 S.W.3d at 497 & n.ll; England, 887 S.W.2d at 914. While there is evidence that Officer Miller agreed to pay Sin money, this is an element of the offense, and the amount was not inordinate and was set by Sin rather than Officer Miller. Cf. Hernandez, 161 S.W.3d at 497 & n.11; England, 887 S.W.2d at 914.
We overrule Sin's sole issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).