Robinson v. State

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for prostitution under V.T.C.A. Penal Code, Sec. 43.02(a)(1). Punishment was assessed at 90 days confinement in the Dallas County jail probated for a period of six months and a fine of $300.00.

Appellant’s two contentions on appeal are (1) that there is a material variance between the information and the evidence, and (2) the evidence is insufficient to support her conviction.

The information in this cause alleged that appellant did “knowingly offer to engage in sexual conduct, namely: sexual intercourse and deviate sexual intercourse with [complainant], for a fee.” See Sec. 43.02(a)(1), supra.

In ground of error 1, appellant’s specific complaint is that the evidence is insufficient to establish that she offered to engage in sexual conduct for a fee, but only that she agreed to engage in sexual conduct for a fee.

The record reflects that the complainant, an officer for the Dallas Police Department, was working undercover on the evening of October 21, 1977. At about 9:00 p.m. he drove to 1900 Browder Street where four or five girls, including the appellant, were standing in front of the Uptown Motel and waved at him. When he stopped his vehicle, the appellant approached the passenger side. On direct examination, the officer testified as follows:

“Q. [By the Prosecutor]: Starting with the first in the series of events, tell the Court what happened.
“A. I was working prostitution that night and driving to 1900 Browder Street around 9:00 or 10:00 o’clock and approximately four or five girls who were in front of the Uptown *142Motel waved at me and I pulled alongside.
“Q. When you pulled over, what if anything occurred next?
“A. A female came over to the car and we started talking about where I could find some action that night.
* * * * * *
“Q. When she approached the car, who spoke first?
“A. I did, I asked her where I could find some action.
“Q. What was her response?
“A. She asked what kind of action I was looking for.
* . * * * * *
“Q. What did you answer her when she asked what kind of action?
“A. I replied that: I was looking for a head job and possibly some pussy.
“Q. What do you mean?
“A. I mean sexual intercourse and oral intercourse.
“Q. You mean deviate sexual intercourse?
“A. Yes.
“Q. When you explained to her what you meant by some action, what if anything was her response?
Jfc * * * * *
“A. She said: How much do you have to spend?
“Q. And what did you say then?
“A. I said I had $40.00 or $50.00.
“Q. Did she say anything after that?
“A. She said: That would be enough and I was the girl for her, she was the girl for me.
“Q. Officer, did you take that to mean that the Defendant was offering to engage in sexual and deviate sexual intercourse with you?
“A. Yes, ma’am.
“Q. And did you take that to mean that she was offering to engage in such conduct for an undetermined fee of approximately $40.00 to $50.00?
“A. Yes, ma’am.
“Q. After she responded that that would be enough and that she was the girl for you, what occurred next?
“A. Then she mentioned that we should go inside the motel that was there. “Q. What motel was this?
“A. The Uptown Motel.
“Q. What if anything occurred next? “A. I said I wouldn’t go in there and I told her I was afraid that I would get rolled and I didn’t want to do that, and I suggested that we stay inside the car.
“Q. What was her respirase?
“A. She said that she didn’t want to do that, she wanted to go in the motel and she got out of the vehicle.
“Q. What if anything did you do next?
“A. I left the area and went back to where my cover was at Old City Park and described the findings to the officers there, Officer Chamber and Officer Thomas. They went over there and arrested her at that time.”

In McCarty v. State, 616 S.W.2d 194 (Tex.Cr.App.1981), a case with closely analogous facts, the appellant appealed from her conviction for the offense of prostitution on the basis that the evidence showed that the “offer” was made by the arresting officer rather than herself. In overruling this ground of error and affirming the conviction, this Court stated:

“Appellant argues that the evidence shows that it was the testifying officer, and not appellant, who made the offer. Although the record indicates the initial offer was made by the complainant, it also shows protracted ‘negotiations,’ in which implied offers were made by both appellant and the complainant. We find the evidence sufficient and overrule the ground of error.” 616 S.W.2d at 197.

We find the reasoning of McCarty, supra, to be controlling in the instant case. Although the record reflects that the officer made the initial inquiry, it also reflects *143“protracted ‘negotiations’, in which implied offers were made by both appellant and the [officer].” Appellant’s first ground of error is overruled.

In her only other ground of error, appellant apparently challenges the sufficiency of the evidence in that no “fee certain” was ever agreed to between the parties, and appellant withdrew from all negotiations and left the officer’s car before a final agreement had been made. Appellant has cited us no authority, and we have been equally unable to find any requirement that a definite “sum certain” be ascertained or a requirement that any type of final agreement be entered into in a prosecution for the offense of “offering to engage in sexual conduct.” The ground of error is overruled.

The judgment is affirmed.