TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00171-CR
v.
The State of Texas, Appellee
NO. 0980751, HONORABLE FRED A. MOORE, JUDGE PRESIDING
"A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes." Id. § 43.04(a). The indictment alleged that appellant used three prostitutes, to wit: Heather Kennedy, Sherri Hawkins, and Belinda Messer.
Messer testified that she was in jail at the time of the trial for possession of a controlled substance, and that she had three convictions for prostitution. Messer first met appellant while she was working for California Ladies in 1993 or 1994. Approximately three years later, appellant purchased California Ladies and asked Messer to work for him in his escort service. At the time appellant hired her, Messer told appellant that she was working as a prostitute on Congress Avenue. When she was dispatched on escort calls, it was understood that Messer would pay appellant a fifty-dollar fee. Appellant advised Messer that she was on her own when she made calls, but in the event of intercourse she should use condoms. Messer brought clients to appellant's house where she had intercourse with them, and on these occasions she paid appellant with drugs in lieu of the fifty-dollar fee. Messer overheard appellant tell one of the other girls that "it was a good idea to always have condoms, not to do it without them." Messer was aware that appellant picked up a known prostitute, Amber, from jail.
Cynthia Withers began working for appellant in 1997 after answering an ad for California Ladies. Appellant told Withers that she would be doing "lingerie modeling, toy shows, and Torah [sic] shows." Appellant did not explain those "shows" to Withers. Sherri Hawkins, an employee at California Ladies, sent Withers to a bachelor party where she slept with one of the customers. Withers paid appellant the required fee. Withers stated that sexual contact was expected on almost every call she made.
Sherri Hawkins, an inmate of the Williamson County Jail at the time of trial, testified that she sent girls on calls while she worked for California Ladies. Upon their return, a fifty-dollar fee would be paid to appellant. Hawkins stated that appellant told the girls to do a "legal show." However, Hawkins testified that appellant knew that the girls had worked as prostitutes on Congress Avenue and that appellant had knowledge that some of the girls were doing illegal things. On one occasion, appellant set up a date for Hawkins and Heather Kennedy. Hawkins and Kennedy both had sex with the customer, and each paid appellant a fifty-dollar fee.
On another occasion, Hawkins overheard a male prostitute tell appellant that he had sex with a fat woman. While Hawkins did not discuss sex with appellant, Hawkins stated that appellant knew that she had had sex with customers on previous calls. Hawkins regularly paid appellant a fifty-dollar fee after she went on a call.
Austin police officer Rob Tucker obtained a search warrant for appellant's residence. Documents were seized that detailed what a model should do "on a call for sex." Instructions were given on how an employee should act so that appellant would not "know ever about any sex deals." Police also found information about how the agency would not be linked to sex, and how to avoid being tape recorded.
Appellant urges that it is not shown that he knew about any illegal or illicit behavior that may have occurred during any model's visits. Appellant points to the testimony of the models who testified that appellant did not know about any illegal behavior. While the evidence shows that Kennedy and Hawkins performed acts of prostitution while in appellant's employ, appellant urges that there was no evidence that he knew of the behavior.
In reviewing the legal sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the prosecution, 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 (1979). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence, nor is it our place to second guess the determination made by the trier of fact. See Collins v. State, 800 S.W.2d 267, 269 (Tex. App.--Houston [14th Dist.] 1990, no pet.). The trier of fact (the jury in this cause) is in a better place than an appellate court to weigh, accept, or reject all or any portion of any witness's testimony. It is the duty of this Court to determine if the explicit and implicit findings by the trier of fact are rational under legal standards to support the conviction. See Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).
Appellant hired known prostitutes for his business; appellant's house was used for prostitution; appellant was paid a fee for the escort calls the women went on; appellant advised the women to use condoms when they had sex; sex was expected on almost every date that was made by the escort service; and appellant detailed how his employees were to prevent any link being made to him about acts of prostitution.
Viewing the cumulative effect of all of the foregoing circumstances in the light most favorable to the verdict, we hold that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Smithwick v. State, 762 S.W.2d 232 (Tex. App.--Austin 1988, pet. ref'd).
On appellate review, we may consider factual sufficiency as well as legal sufficiency. See Stone v. State, 823 S.W.2d 375 (Tex. App.--Austin 1992, pet. ref'd untimely filed); see also Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (adopting Stone test). In Stone, this Court set the following standard for factual review:
[T]he court reviews all the evidence without the prism of "in the light most favorable to the prosecution." Because the court is not bound to view the evidence in the light favorable to the prosecution, it may consider the testimony of defense witnesses and the existence of alternative hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.
823 S.W.2d at 381 (citations omitted).
Our analysis of appellant's factual challenge to the sufficiency of the evidence includes the testimony of employees that appellant did not know about their behavior on dates. After reviewing all of the evidence and the arguments and the existence of alternative hypotheses, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Appellant's points of error are overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Kidd, Patterson and Davis*
Affirmed
Filed: June 17, 1999
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
police officer Rob Tucker obtained a search warrant for appellant's residence. Documents were seized that detailed what a model should do "on a call for sex." Instructions were given on how an employee should act so that appellant would not "know ever about any sex deals."