Opinion issued November 19, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00190-CR
YUBIN ZHANG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 14
Harris County, Texas
Trial Court Cause No. 1539505
MEMORANDUM OPINION
A jury convicted Yubin Zhang of the class B misdemeanor offense of prostitution for knowingly soliciting another in a public place to engage in sexual conduct for hire. See Tex. Penal Code Ann. § 43.02(a)(2) (Vernon 2003). The trial court assessed punishment of 180 days’ confinement in the Harris County Jail, probated for six months, and a one hundred dollar fine. Zhang appeals, claiming the State presented legally and factually insufficient evidence to show that she solicited another in a public place. We conclude that the evidence is sufficient to support the jury’s verdict and therefore affirm.
Background
On July 22, 2008, Officer D. Leal, Officer M. Williams, and Sergeant Kilty investigated a prostitution complaint. Officer Leal called the phone number included in the complaint from the parking lot of the Sun Blossom Cottages, the identified apartment complex. When Officer Leal asked if there were any girls available, Zhang told him that girls were available and asked when he could arrive. Leal responded that he would arrive immediately and was at the door within five minutes.
The door to the apartment opened directly into the parking lot of the complex, and neither gates nor codes controlled access to the apartment. The apartment had no sign on the door indicating the presence of a business within. After Officer Leal knocked on the door, Zhang answered and invited him inside. The apartment had a small kitchen and a furnished living room, which included a small table displaying Zhang’s massage license and a curtained area containing a massage table.
Zhang led Officer Leal to the curtained area and asked for fifty dollars. When Zhang asked if Leal had been there before, he replied that a friend told him about the place; Zhang did not further question Leal. Zhang told Leal to remove his clothes and Leal complied by removing everything except his boxers and socks. Zhang removed the rest of his clothes and proceeded to massage his back for twenty to twenty-five minutes. Zhang then told Officer Leal to roll over, at which time she offered to masturbate him. After they agreed on a price of twenty dollars, Officer Leal signaled the other officers. Shortly thereafter, the officers knocked on the door, were granted access, and arrested Zhang.
The officers searched the apartment and found a business card in the kitchen, indicating that Zhang ran a massage business out of the apartment. The card noted business operating hours, included a map to the apartment, and indicated that potential clients should call to make an appointment. Police found two other people in the apartment, but the apartment had almost no clothing in the closets. The officers testified that, although Zhang did not operate a registered business, Zhang had converted the apartment into a business establishment that offered massages and prostitution.
At trial, after the State rested, Zhang moved for an instructed verdict on the ground that the State failed to prove that the alleged solicitation occurred in a public place. The trial court found that sufficient evidence of public place existed to submit the issue to the jury and denied the motion. The jury found Zhang guilty of prostitution, and the trial court assessed punishment at 180 days’ confinement, probated for six months, and a one hundred dollar fine.
Discussion
Zhang contends that the State did not present legally and factually sufficient evidence to demonstrate that she solicited Officer Leal in a public place. In a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we view all the evidence in a neutral light and only set aside the verdict if the evidence, though legally sufficient, is so obviously weak that the verdict (1) seems “clearly wrong and manifestly unjust,” or (2) is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We cannot conclude that the verdict is “clearly wrong or manifestly unjust” just because, based on the quantum of evidence presented, we would have voted to acquit had we been on the jury. See id. at 417. The record must contain an objective basis that the great weight and preponderance of the evidence contradicts the verdict before we can remand based on factual insufficiency. See id. Since the jury is in the best position to evaluate the credibility of witnesses, we defer to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We must also discuss the evidence that, according to the appellant, best supports her claim and undermines the verdict. See Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).
The State charged Zhang under section 43.02(a)(2) of the Penal Code.[1] This subsection requires the prosecution to prove that the conduct occurred in a public place, whereas subsection 43.02(a)(1) does not so require. When an indictment facially alleges a complete offense, the State is bound by the theory alleged in the indictment, and the reviewing court is also bound by this theory in its sufficiency analysis. Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). Thus, even though the State could have charged and proved the offense under the first prong of the statute without having to show that the conduct occurred in a public place, here, the State must prove public place because the information alleged the offense under the second prong of the statute.
The Penal Code defines a “public place” as “any place to which the public or a substantial group of the public has access and includes, but is not limited to streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.” Tex. Penal Code Ann. § 1.07(a)(40) (Vernon Supp. 2008). A place can be public or not depending on the particular circumstances. Banda v State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994). The relevant inquiry is whether the public has access to the area. See Loera v. State, 14 S.W.3d 464, 467 (Tex. App.—Dallas 2000, no pet.).
Zhang contends that the apartment is not a public place, and alternatively, that even if the apartment is considered a public place, the curtained-off area where the massage occurred is not a public place. Zhang observes that a private residence has never been considered a public place. See Commander v. State, 748 S.W.2d 270, 271 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (holding a private residential driveway is not a public place). But the critical determination of whether an area is a public place “should only be made after a careful examination of the facts, and the matter should be resolved on a case by case basis.” Loera, 14 S.W.3d at 469.
First, evidence presented at trial indicates that Zhang did not use the apartment as a private residence, but as a massage parlor business. Thus, though one must place a phone call to gain access to the apartment, access was not limited to private use or to those known by the occupants. In Woodruff v. State, a jury convicted the appellant of DWI for driving down a road in Bergstrom Air Force Base while drunk. 899 S.W.2d 443, 443–44 (Tex. App.—Austin 1995, pet. ref’d). The base had guarded gates, was completely fenced, and required passes to enter. Id. at 444. However, under the right circumstances anyone could gain access by either obtaining a visitor’s pass from the public affairs office or by someone they know on base “sponsoring” them onto the property. Id. at 445. The court focused on the “extent of actual access and not the formalities by which access is granted” in determining that the air force base was a public place for the purposes of the statute. Id.; see also Lazano v. State, 650 S.W.2d 137, 139 (Tex. App.—Houston [14th Dist.] 1983, no pet.) (holding requirement that patron pay for entry did not make theater a private place).
Zhang argues that the facts of this case are more like those in O’Sullivan v. Brown, 171 F.2d 199 (5th Cir. 1948), because Officer Leal was never left alone in the apartment like the visitors in O’Sullivan, and the visitors in Woodruff were allowed to go as they pleased once inside the air force base. Compare O’Sullivan, 171 F.2d at 200 (holding road at privately-owned aircraft corporation was not public place because visitors were required to have a pass and were accompanied by military escort at all times), with Woodruff, 899 S.W.2d at 443–44. The fact that Officer Leal did not have freedom to move around the apartment unhindered does not mean that the apartment is not a public place. In determining whether the State presented sufficient evidence to prove public place, our focus “should be whether the place is one to which the public has access.” Leora, 14 S.W.3d at 467; see also State v. Nailor, 949 S.W.2d 357, 359 (Tex. App.—San Antonio 1997, no pet.) (“The relevant inquiry is whether the public can enter the premises.”). As in Woodruff, under the right set of circumstances, any member of the public could gain access to the apartment. A person with the phone number, advertised on the business card, could gain access to the apartment. Officer Leal was admitted within five minutes of making the call to Zhang. The supervised nature of this access does not alter the public character of this apartment.
Second, other evidence at trial showed that Zhang routinely invited members of the public to the apartment. See Green v. State, 566 S.W.2d 578, 580 (Tex. Crim. App. 1978). In Green, the fact that the adult bookstore was open for business strongly indicated that it was a public place. See id. at 582; see also Loden v. State, 561 S.W.2d 2, 3 (Tex. Crim. App. 1978) (“We hold that a bar open to the public for business is a public place.”). In this case, Zhang asked if Officer Leal had visited the establishment before, which indicates that she had other customers and did not recognize them all. Zhang also told Officer Leal that the business was having a slow day. The business card found in the apartment stated business hours, phone number, and location, including a map to the apartment. Even though the massage parlor was not a registered business, Zhang displayed a massage license, and the place was open to anyone who called ahead. Two other persons were present at the time of Zhang’s arrest, which provides additional evidence that the apartment was open to the public. See Green, 566 S.W.2d at 580.
The fact that Zhang propositioned the officer in a partitioned area of the living room is also unavailing. The appellant in Green, for example, argued that a viewing booth in an adult bookstore was not a public place. Id. The booths were approximately six feet tall, and full length curtains covered their entries. Id. Officers observed the appellant engaging in sexual conduct through a gap between the curtain and the side of the booth. Id. at 581. The Court of Criminal Appeals observed:
The booth was open to anyone. All one had to do was draw the curtain to enter the booth. . . . Appellant testified that he looked into other booths and saw people in them. The store was open to the public; that is the way it was supposed to make a profit. . . . Under all of the evidence the booth was part of a public place.
Id. at 582. Similarly, in Cammack v. State, the Court of Criminal Appeals held that the appellant could not alter the public nature of a booth by simply closing and locking a door. 641 S.W.2d 906, 908 (Tex. Crim. App. 1982). The court reasoned that the public had free access to the booths even when others were inside. See id.; see also Westbrook v. State, 624 S.W.2d 294, 295 (Tex. App.—Dallas 1981, no pet.) (citing Green for proposition that booth in public shop where occupants do not have expectation of privacy is public place).
The partition in this case is similar to the partitioned areas in Green and Cammack. The curtain was drawn, but there is no evidence that this changed the nature of the area from public to private. At the time of the massage, other people remained in the apartment and could potentially see into the area, just as the officers did in Green. A curtain partition provides even less privacy and grants greater access to the area than a booth. Any member of the public granted access to the apartment would also have access to this partitioned area. Contra Kirtley v. State, 585 S.W.2d 724, 726 (Tex. Crim. App. 1979) (holding interior of car traveling down road is not accessible to public and therefore not a public place). It is also not highly unlikely that other occupants of the apartment would approach the partitioned area. Contra Honeycutt v. State, 690 S.W.2d 64, 66 (Tex. App.—Houston [14th Dist.] 1985, pet. ref’d) (“However, it is highly unlikely that any member of the public . . . would approach a car parked behind a vacant building next to a fence in a dark parking lot at Airline and Tidwell at 2:00 a.m.”). Viewing the evidence in the light most favorable to the verdict, we conclude that the apartment was open for a massage/prostitution business and, thus, a rational jury could have found beyond a reasonable doubt that the apartment was a public place.
Zhang also contends that the evidence, when viewed in a neutral light, is so weak that the verdict is clearly wrong and manifestly unjust. Zhang argues that the following evidence undermines the jury’s verdict: the police arrested Zhang in the interior of an apartment in a residential apartment complex; no signs outside the apartment indicated the presence of a business inside; the apartment had a kitchen, furnished living room, and clothing in the closet; the massage services occurred in a private, partitioned area; Zhang personally admitted clients into the apartment by appointment; Zhang monitored access to the apartment and constantly supervised clients inside the apartment. Additionally, according to Zhang, the State produced no evidence that Zhang distributed and circulated her business card to the general public, advertised to the public, or served a large clientele. Even when we consider these facts, the great weight and preponderance of the evidence does not contradict the verdict, nor is the evidence of public place so weak as to render the verdict clearly wrong and manifestly unjust.
Here, the door of the apartment opened directly to the complex’s parking lot and no gates or codes controlled access to this area. On the phone, Zhang informed Officer Leal that “girls were available” and she later opened the apartment door to let him inside, suggesting the massage parlor was open for business. Zhang asked Leal if he had been there before, indicating that she had enough customers such that she could not remember all of them. Leal mentioned that a friend referred him to Zhang and she did not question further or inquire about the name of Leal’s referral. Zhang invited Leal into the apartment even though she did not know him and they did not have a mutual acquaintance, implying that any member of the public could call Zhang, make an appointment, and gain access to the apartment. When searching the apartment after arresting Zhang, officers found two additional people upstairs and almost no clothing in the closets. The living room contained a massage table located behind a large curtain partition and Zhang displayed her massage license on a table in the living room. Additionally, Zhang’s business cards included the apartment’s address, phone number, and business hours, as well as a map to the apartment’s location. A reasonable jury could conclude that the partitioned area, massage table and license, and the business cards with hours of operation all indicate that Zhang used the apartment for business purposes and invited the general public to partake of the services she offered. Viewing all of the evidence in a neutral light, we hold that the evidence is factually sufficient to support the jury’s verdict.
Conclusion
The evidence is both legally and factually sufficient to show that the misdemeanor offense of prostitution occurred in a public place. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Wilson.[2]
Do Not Publish. Tex. R. App. P. 47.2(b).
[1] Section 43.02(a) reads:
(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or
(2) solicits another in a public place to engage with him in sexual conduct for hire.
Tex. Penal Code Ann. § 43.02(a) (Vernon 2003).
[2] The Honorable Randy W. Wilson, Judge of the 157th District Court of Harris County, Texas, participating by assignment. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).