In The
Court of Appeals
For The
First District of Texas
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NO. 01-06-00004-CR
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PETE LAVARD RICHARDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1044020
MEMORANDUM OPINION
A jury found appellant, Pete Lavard Richardson, guilty of compelling prostitution of a person younger than 17 years of age. See Tex. Pen. Code Ann. § 43.05(a)(2) (Vernon 2003). Having granted the State's motion to amend the indictment to allege four enhancement paragraphs for prior Florida felony convictions, the trial court rejected appellant's plea of "not true," found the enhancements true, and assessed appellant's punishment at life in prison. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2006) In two points of error, appellant contends that he was improperly denied permission to voir dire an expert witness, and that the witness's testimony was not relevant to the case. We affirm the judgment of the trial court as modified herein.
Factual Background
Complainant was 12 years old when she left her home in Florida and began working as a prostitute. She left school after the eighth grade and had been working for a pimp in Florida for less than a year when she met appellant. Appellant hesitated to be her pimp because she was so young, but became her pimp after she paid him a "choosing fee," an amount of money that a potential prostitute pays to a pimp to become one of the pimp's prostitutes.
Appellant provided complainant with shelter, food, clothing, and, particularly at the beginning of their relationship, care and affection; he was "there" for her and told her that he loved her. In return, she prostituted herself and gave her earnings to appellant. She set a goal to earn $1,500 per night as the amount of money that would keep appellant "happy." She wanted to please appellant and knew his "rules." She knew not to speak to other pimps or make eye contact with them, because that would indicate a wish to associate with them, instead of with appellant. When appellant became angry with complainant, he would curse her, hit her, or accuse her of "not being a good whore."
Complainant was 16 years old and had just stopped working for another pimp in March 2005, when she began working again for appellant and left Florida with him and another prostitute. The plan was to drive to California, but the trio stopped in Houston for about a week so that complainant and her companion could work and earn money. Appellant planned the trip, decided to make the stop in Houston, and chose the location where complainant worked. Appellant promised to buy a house for complainant after the trip to California so that she could retire. In Houston, complainant and the older prostitute worked from the same location, a strip center near Hillcroft Road and Highway 59, where a hotel was located nearby. While working, she used a cell phone to keep in touch with appellant, who tracked her earnings.
Houston Police officers and agents of the Federal Bureau of Investigation (FBI) were working together in March 2005 on a project focused on crimes against children. On March 11, 2005, Houston Police Officer C. Simon, posing as a potential customer, approached complainant and negotiated a transaction by which complainant would provide sex to Simon for $80. After complainant entered Simon's car, FBI Special Agent P. Fransen followed in a different car. When Officer Simon gave the signal, Special Agent Fransen stopped Simon's car and arrested complainant. Other officers operating the sting arrested the second prostitute, who, with complainant, identified appellant as their pimp; they described the car he was driving and indicated the hotel where the trio was staying. Appellant was arrested as he was attempting to leave the hotel. Police later recovered a digital recorder that appellant used to record his telephone conversations with complainant.
Refusal to Permit Voir Dire of Special Agent Fransen
During its case-in-chief, the State questioned Special Agent Fransen concerning his experience with crimes against children, in particular, adults who exploit children and molest them sexually through prostitution. Appellant contends that the State offered Special Agent Fransen as an expert, and that the trial court erred by refusing to permit appellant to conduct a voir dire examination of Fransen, outside the presence of the jury, concerning the underlying facts on which he based his opinion. See Tex. R. Evid. 705(b) (mandating that opponent of expert testimony be permitted to examine expert, outside jury's presence, concerning facts or data underlying opinion before expert testifies concerning those facts or data). Denial of a timely request for a Rule 705(b) hearing may be reversible error, because the rule is mandatory in criminal cases. Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995); Harris v. State, 133 S.W.3d 760, 773 (Tex. App.--Texarkana 2004, pet. ref'd).
Pursuant to rule 701 of the Rules of Evidence, however, a witness may offer testimony in the form of opinions or inferences if the testimony is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact issue. Tex. R. Evid. 701. (1) We review a trial court's decision whether to admit or exclude testimony under rule 701 for abuse of discretion, and we will reverse only if the trial court abused its discretion. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). If the record supports the ruling, we must affirm. See Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1996). As the Court of Criminal Appeals has recognized, a "distinct line . . . between lay opinion and expert testimony" does not exist. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).
The record in this case establishes that the prosecutor had established the following, without objection, before appellant asked to conduct the voir dire examination of Special Agent Fransen: Fransen had worked almost eight years with the FBI in various capacities; his work in Houston is with the violent crimes division of the FBI; his last year and seven months focused on crimes against children; his squad consists of eight or nine agents; he and another agent, a female, specialize in child prostitution through a national initiative called "Innocence Lost"; the mandate for his division is to identify adults who molest child victims by exploiting them through prostitution; many child victims have grown up without parental supervision; the majority have been molested as children; they have low self-esteem, physical and emotional problems and have been abused sexually, physically, or mentally; "they are innocent children [who] have no guidance"; having interviewed "hundreds of prostitutes" and "numerous pimps," Special Agent Fransen became familiar with the "pimping culture" and its "jargon or lingo"; he learned the process by which a child is recruited, maintained, begins working as a prostitute, and then provides the funds to the pimp; he responded, "I do," when asked if he had an opinion about whether he was qualified, based on his training and experience, to discuss the pimping subculture and how it related to appellant's trial for child prostitution.
Only when the prosecutor asked Special Agent Fransen to describe the subculture of pimping and child prostitution did appellant's counsel ask to approach the bench to state,
[DEFENSE COUNSEL]: Judge, if they are trying to have him testify as an expert witness, I'd like to take him on voir dire outside the presence of the jury. And I don't think that he can testify from [sic] - as an expert witness in the case.
After instructing the State that appellant was entitled to a hearing outside the presence of the jury, to the extent the State was offering Special Agent Fransen as an expert, the following exchange occurred:
[PROSECUTOR]: So you know, I'm not offering him as an expert. Because he is a police officer who has received special training does not make him an expert.
[THE COURT]: Are you offering him as an expert?
[PROSECUTOR]: I'm getting ready to have him explain about his training and experience, much like a narcotics officer to testify about the culture of narcotics on the street, the value of dope in general, per kilo. This has to do with prostitution, and case law shows those folks are not experts for purposes of the statute.
[THE COURT]: Where are you going with him?
[PROSECUTOR]: To testify about the subculture about how it is that girls get recruited. And it will corroborate what [complainant] said and how it is that the pimps maintain their control and cause the prostitutes to - and it will corroborate some of the things that [complainant] said about what [sic] her particular case as it pertains to what her relationship was with [appellant]. Considering that the defense attorney has crossed on the issue of cause, actually elicited an answer from [complainant] by asking her, did he make you prostitute. I think this is relevant to show what the culture is and how they go about getting these girls into the environment where they begin to prostitute and how that's going to equal causation in this [case].
When the trial court asked if appellant had a response, his counsel stated, "Judge, sounds like he is an expert. All of this stuff she is talking about sounds a lot like an expert." The bench conference concluded when the trial court overruled the request to voir dire Special Agent Fransen.
Rule 701's requirement that the proferred opinion be rationally based on the perceptions of the witness consists of two parts; the witness must first establish personal knowledge of the events from which he derives the opinion, which must then be rationally based on that knowledge. Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997); accord Tex. R. Evid. 602 (requiring that proponent of testimony demonstrate that witness has personal knowledge). The proponent of lay-opinion testimony must establish that the witness has personal knowledge of the events on which the witness bases his opinion. Fairow, 943 S.W.2d at 899.
Case law recognizes that personal knowledge may derive from experience. See Ex Parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (describing officer's testimony that victim had not been attacked, in context of claim that counsel was ineffective for not objecting to testimony) (citing with approval Fairow, 943 S.W.2d at 898-99 (holding that officer properly offered opinion concerning individual's mental state)); Austin v. State, 794 S.W.2d 408, 410-11 (Tex. App.--Austin 1990, pet. ref'd) (recognizing that officer could identify code term for prostitution based on his experience). Settled precedent under rules 401 and 402 thus recognizes that a police officer may provide opinion testimony pursuant to rule 701 if it is based on his personal observations and experiences. Reece v. State, 878 S.W.2d 320, 324-25 (Tex. App.--Houston [1st Dist.] 1994, no pet.) (holding that police officer may testify, based on his training and experience, that actions he observed were consistent with selling drugs); Austin, 794 S.W.2d at 410-11 (holding that police officer properly opined, based on his personal experience, that "Swedish deep muscle rub" was code for prostitution); see also McRae v. State, 152 S.W.3d 739, 746-47 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd) (holding that officer's observations of defendant's performance on one-leg stand did not convert lay witness testimony into expert testimony).
We hold that the trial court properly admitted Special Agent Fransen's testimony under rule 701 and therefore did not err by denying appellant's request to conduct a voir dire examination pursuant to rule 705. The State offered Special Agent Fransen as a lay witness to "testify about the [pimp] subculture," and to address the issue of cause, as placed into issue by appellant's cross-examination of complainant. The questions contemplated drew directly from Special Agent Fransen's personal experience and familiarity with the pimping subculture, including its terms, many of which complainant had used in her testimony, which Special Agent Fransen gained from interviewing both pimps and prostitutes. Questioning Special Agent Fransen concerning what he learned from his experience would assist the fact-finder in determining a fact in issue, specifically, appellant's utilizing complainant, then a child, as a prostitute for his personal profit.
Because the record demonstrates that the State offered Special Agent Fransen's testimony for reasons that comport with rule 701, we cannot say that the trial court abused its discretion by denying appellant's request for a rule 705 hearing. See Joiner, 825 S.W.2d at 708.
We overrule appellant's first point of error.
Relevancy of Special Agent Fransen's Testimony
In his second point of error, appellant contends that the trial court erred by overruling his objections to the relevancy of Special Agent Fransen's testimony, because the State did not establish how his opinion "fit" the facts of this case, as required by rule 702 of the Rules of Evidence. We note at the outset that rule 702 applies only to expert testimony. See Tex. R. Evid. 702 (Testimony by Experts) (emphasis added). For the reasons addressed above, the trial court properly admitted Special Agent Fransen's testimony pursuant to rule 701. Accordingly, rule 702 does not apply.
We overrule appellant's second point of error.
Judgment Modified to Conform to Oral Pronouncement on Enhancement
Though we have overruled appellant's points of error, we must modify the trial court's written judgment, sua sponte, in order that the written judgment conform to the trial court's oral pronouncements.
Compelling prostitution is a second-degree felony, punishable by a maximum of 20 years' confinement in prison. Tex. Pen. Code Ann. §§ 43.05(b), 12.33(b) (Vernon 2003). In this case, however, the State alleged four prior felony convictions as enhancements for punishment. The reporter's record demonstrates that the trial court rejected appellant's plea of "not true" to these enhancements, orally announced a finding that the enhancement paragraphs of the amended indictment were true, and, in accordance with that finding, orally pronounced appellant's sentence at life in prison. See Tex. Pen. Code Ann. § 12.42(d); see also Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon 2006) (requiring that sentence be pronounced in defendant's presence). The trial court's written judgment also recites a sentence of life in prison. The written judgment differs, however, from the trial court's oral pronouncements by reciting that the trial court found the enhancement allegations of the amended indictment "not true."
Well-settled law recognizes that the trial court's written judgment serves only as the "declaration and embodiment" of the trial court's oral pronouncements. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); see Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). When, as here, the trial court's oral pronouncements concerning sentencing conflict with the recitals in the judgment, the oral pronouncement controls. See Taylor, 131 S.W.3d at 500; Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Madding, 70 S.W.3d at 135; Coffey, 979 S.W.2d at 328.
This Court properly exercises its jurisdiction to modify a trial court's judgment to preserve the integrity of the record when, as here, the record provides the information required to support modification. See Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.--Houston [1st Dist.] 2001, no pet.). Accordingly, we modify the judgment of the trial court to reflect that the trial court found true the felony convictions alleged as enhancement against appellant.
Conclusion
We affirm the judgment of the trial court as modified by this opinion.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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