Affirmed and Majority and Dissenting Opinions filed May 9, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00371-CR
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RAQUEL MELENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1225398
M A J O R I T Y O P I N I O N
Raquel Melendez appeals a conviction for prostitution[1] on the grounds that the trial court erred by overruling her objections to jury argument and hearsay evidence. We affirm.
Jury Argument
Appellant=s first issue contends that the trial court erred by overruling the following objections to the State=s jury argument:
Prosecutor: . . . there=s a place where prostitution is alive and well. She=s one of the people who contributes to that. A reason she doesn=t remember this event, think about it, why doesn=t she remember offering to engage in prostitution? It=s because this is something that she does day in and day out.
Appellant: Objection . . . outside the record.
The Court: Overruled.
Prosecutor: This was not some singular event that she=s going to remember.
Appellant: Objection, outside the record . . . .
The Court: Overruled.
Prosecutor: This is not some singular event that she=s going to remember. This is something that happens on a daily basis.
Appellant: Objection, outside the record . . . .
The Court: Overruled.
(emphasis added). Appellant contends that there was no evidence supporting the portion of the State=s argument (italicized above) that she regularly engaged in prostitution or had ever done so before.
Proper jury argument includes, among other things, reasonable deductions from the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Thus, it is improper to argue facts that are not in evidence. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). However, trial counsel is allowed wide latitude in drawing inferences from the evidence, so long as the inferences drawn are reasonable and offered in good faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997).
In this case, the State=s only witness was Deputy Kevin Monfort, an undercover member of the Harris County Sheriff=s Department vice unit. He testified that on the evening of the offense, he was participating in an undercover investigation of citizen complaints of prostitution and violations of the sexually-oriented business laws at the St. James Cabaret (the ACabaret@) when appellant, a dancer there, approached his table, identified herself as ALila,@ and asked to sit down. During their conversation, appellant asked Monfort if he was there to Aplay,@ which Monfort testified was a slang term used in sexually-oriented businesses to refer to sex for pay in order to avoid using explicit sexual terms or the word Aprostitution.@ Appellant then invited Monfort to a private room, where she performed two private dances and repeatedly touched him in a sexual manner that violated sexually-oriented business regulations. After the dances, appellant sat on Monfort=s lap and again discussed the topic of Aplaying.@ When Monfort expressed interest, appellant engaged in a negotiation, which resulted in a price of $325 for Astraight sex.@ During this negotiation, Monfort stated that appellant expressed no surprise at any of his questions and clearly understood the nature of the transaction they were negotiating. When Monfort informed appellant that he did not have enough cash, appellant attempted to hold the cash he did have until he could get more and suggested that Monfort use the club=s cash machine. After Monfort explained that he did not want to do that, appellant told him he could use her name when he returned to avoid paying another entrance fee. Monfort then left the club without returning, and appellant was later arrested after her identity was determined using the database Harris County maintains for sexually-oriented businesses.
Appellant testified at trial that she did not recognize Monfort or remember dancing for him or any other events on the evening in question.[2] However, she stated that she did not offer to have sex with him because she never did that. She agreed that she had danced for hundreds of men in the intervening year between the alleged offense and trial.
Because there is no direct evidence of any other instance in which appellant offered to engage in sex for pay, we consider whether the evidence nevertheless reasonably supports an inference that doing so was a commonplace occurrence for her and thus supports the prosecutor=s argument to that effect circumstantially. Deputy Monfort=s testimony, outlined above, showed not only that appellant had offered to engage in sex for pay, but also that: (1) she brought up the subject; (2) she did so using a term that is commonly employed as a euphemism for prostitution in sexually-oriented businesses; (3) she invited Monfort to a private room where she could, without being observed by others, touch him in ways that not only violated applicable laws, but were arguably calculated to increase Monfort=s interest in paying to have sex with her; and then (4) she again pursued the subject with him and engaged in a negotiation of price in a way that reflected both a clear understanding of what was involved and an aggressiveness in Aclosing the deal.@
From this evidence, it could reasonably be inferred that appellant had a level of experience and skill in these matters that had been developed through other such instances and, thus, that offering to engage in sex for pay was a commonplace occurrence for her. Under these circumstances, it was within the trial court=s discretion to conclude that the State=s argument to that effect was within the wide latitude allowed for drawing inferences from the evidence. Accordingly, appellant=s first issue is overruled.
Hearsay Evidence
Appellant=s second issue argues that the trial court erred by overruling her hearsay objection to State=s Exhibit 1, appellant=s completed Sexually Oriented Business Employee Information Record.[3] We review a trial court=s decision to admit or exclude evidence for abuse of discretion. Shuffield v. State, ___ S.W.3d ___, ___, 2006 WL 335911, at *9 (Tex. Crim. App. 2006). Error, if any, in the admission of evidence is cured where the same evidence comes in elsewhere without objection, either before or after the complained-of ruling. Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004).
Here, appellant objected to the exhibit at trial on the basis that it was hearsay (and presumably not subject to the business records exception) because: (1) someone from the Cabaret needed to authenticate the exhibit because the entries were not made by the Sheriff=s Department, but by someone from the Cabaret; and (2) Deputy Monfort did not testify that he was the custodian of the records.[4] However, the predicate for the business records exception to the hearsay rule may be established either by the custodian of records or another qualified witness. Tex.R. Evid. 803(6). Rule 803(6) does not require that the witness be the person who made the record or even be employed by the organization that made or maintained the record, and appellant cites no authority imposing any such requirement. Therefore, appellant=s second issue fails to demonstrate that Monfort was not a qualified witness for purposes of the business record exception to the hearsay rule.
Appellant also argues that admission of this exhibit substantially strengthened the State=s case because, without it, the State would have necessarily relied solely upon Monfort=s independent recall of the event, and the defense theory of the case, that Monfort misidentified appellant, would have been more credible. However, Monfort testified without objection prior to the admission of the exhibit that he had discovered appellant=s real name through the vice department=s database (for which Exhibit 1 had been created and was the source of the information concerning appellant) using her stage name ALila@ and verifying her identity through the photograph attached to the exhibit. In addition, appellant testified, after admission of this exhibit, that she used the stage name ALila,@ and that she had completed that form. Because appellant=s identification from this exhibit was therefore established elsewhere at trial without objection, any error in admitting the exhibit was cured. Accordingly, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Majority and Dissenting Opinions filed May 9, 2006.
Panel consists of Justices Anderson, Edelman, and Frost. (Frost, J., dissenting).
Publish C Tex. R. App. P. 47.2(b).
[1] A jury convicted appellant, and the trial court assessed a fine and 45 day sentence, but suspended the sentence and placed her on community supervision for one year.
[2] The offense occurred in late February 2004, charges were filed in March 2004, but appellant allegedly did not learn of the charges until early November 2004.
[3] This document contains a photograph and description of appellant, as well as her stage name ALila,@ legal name, address, social security number, and driver=s license information.
[4] Appellant also complains for the first time on appeal that this exhibit should not have been admitted under the business records exception to the hearsay rule because Monfort did not testify that: (1) the record was made at or near the time of the event being recorded; or (2) the person making the records or submitting the information had personal knowledge of the events being recorded. However, because these elements were not challenged in the trial court, they are not properly before us for review. See Tex. R. App. P. 33.1(a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also Carty v. State, 178 S.W.3d 297, 305 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d).