Opinion
No. 05-08-00544-CR
Opinion filed June 26, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause No. MB06-72488-K.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
OPINION
A jury convicted Daniel Zuniga of prostitution, and the trial court assessed punishment at ninety days confinement in the county jail, probated for six months, and a $200 fine. In a single issue, appellant contends the trial court should have granted his motion for directed verdict or his motion for new trial because the evidence is legally and factually insufficient to show that he understood sufficient English to offer, solicit, or agree to engage in sexual conduct for a fee. We affirm the trial court's judgment. We review a challenge to the denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). We examine the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In examining the evidence in the light most favorable to the verdict, we assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007). The State was required to prove beyond a reasonable doubt that appellant knowingly offered and agreed to engage in sexual conduct for a fee. See Tex. Penal Code Ann. § 43.02(a) (Vernon 2003). The evidence presented included testimony from one witness, Officer Angela Nordyke. Nordyke testified she was conducting an undercover prostitution sting operation near a gas station in the 2500 block of North Fitzhugh on July 25, 2006. As Nordyke was standing in the area at about 9:40 p.m., appellant drove up in an older-model truck and asked her if she was working. Nordyke said "yes" and asked appellant if he was working. Appellant said, "[Y]eah," and then asked, "[h]ow much?" Nordyke said, "[W]hat do you want, do you want a fuck, basically?" Appellant said, "[Y]eah." Nordkye asked appellant if he had twenty dollars. Appellant indicated he had the money, then asked Nordyke if she had a car. When Nordyke said she had a car, appellant asked her to follow him. At this point, Nordyke signaled to undercover officers, by running her fingers through her hair, that appellant had asked her for sexual intercourse and agreed on a price. The undercover officers radioed patrol officers with a description of appellant, his vehicle, and whether there was a passenger in the car. The patrol officers stopped appellant and arrested him. Nordyke testified her entire conversation with appellant was conducted in English. Nordyke testified she spoke both Spanish and English and would understand appellant if he had spoken in Spanish, but he did not. Nordyke testified that if an accused spoke to her in Spanish, she always inserts a notation in her arrest report that he spoke to her in Spanish. The arrest report in this case had no notation inserted because appellant spoke to her in English. Nordyke testified she remembered appellant because he asked her to follow him in her car, which was unusual, rather than simply telling her to get into his vehicle like most all of the other men who propositioned her. Appellant did not testify or present any evidence during the trial. On appeal, appellant contends that because he does not speak or understand English, he could not have offered or agreed to have sex with Nordyke for a fee as charged. To support his contention, appellant points to an affidavit his trial interpreter provided in which the interpreter states her belief that appellant neither speaks nor understands English. Appellant filed the interpreter's affidavit during the motion for new trial hearing. Sufficiency of the evidence must be based upon evidence submitted at the time of trial. See Idowu v. State, 73 S.W.3d 918, 922 n. 12 (Tex.Crim.App. 2002). It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing all of the evidence under the proper standard, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. Having concluded the evidence is sufficient, we conclude the trial court did not err in denying appellant's motion for directed verdict or motion for new trial. We resolve appellant's sole issue against him. We affirm the trial court's judgment.